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Full text of "Annual Report Workers' Compensation Appeals Tribunal 1992-1993"


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Ontario 



Workers' Compensation Appeals Tribunal 
Tribunal d'appel des accidents du travail 



ANNUAL REPORT 

1992 AND 1993 



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Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport9293onta_0 



ANNUAL REPORT 
1992 AND 1993 



Ontario Workers' Compensation Appeals Tribunal 

505 University Avenue, 7th Floor 

Toronto, Ontario 

M5G 1X4 

ISSN: 1181-6031 
©1994 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Contents 

INTRODUCTION v 

REPORT OF THE TRIBUNAL CHAIR 

THE TRIBUNAL'S PERFORMANCE 1 

THE DEVELOPING CASELOAD PROBLEM 1 

The Present Caseload 1 

Portents of Caseload to Come 3 

Increasing Complexity 4 

WCAT's Response to the Caseload Problem 4 

THE TRIBUNAL'S COST-CUTTING PERFORMANCE 5 

Re-organization of Public Access to Decision Database 5 

In-house Production of W.C.A.T. Reporter 5 

Increased Subscription Fees 5 

Court Reporters 5 

WCB Transcripts 6 

Reduced Expenditures On Supplies and Office Equipment 6 

Change in Scheduling Strategies 6 

Withdrawal Initiatives 6 

Pre-hearing Conferences in Out-of-Toronto Hearings 7 

Changes to Case Description Formats 7 

Strategies for Shortening the Time Required to Write Reasons 7 

Space 8 

Postponement of the Second Phase of the Case Tracking System 8 

Social Contract Arrangements 8 

MEMBERS' CODE OF PROFESSIONAL RESPONSIBILITY 9 

WCAT HARASSMENT POLICY 10 

UNION CERTIFICATION 10 

ALTERNATE CHAIR 10 

DRAFT-DECISION REVIEW AND THE INSTITUTIONALIZING 

OF TRIBUNAL DECISIONS 10 

WCAT DECISIONS AND WCB POLICY 11 

HIGHLIGHTS OF THE 1992-93 CASE ISSUES 12 

Re-employment Under the 1990 Act 13 

Employment Benefits Under the 1990 Act 14 

Vocational Rehabilitation 15 

Occupational Stress 15 

Occupational Disease 16 

Experience Rating of Employers 17 

Associated Employers 18 

Chronic Pain and Fibromyalgia 18 

Canadian Charter of Rights 19 

Other Issues 20 

JUDICIAL REVIEW ACTIVITY 20 

Other Matters 21 



in- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



THE TRIBUNAL REPORT 

THE APPEAL PROCESS 23 

VICE-CHAIRS, MEMBERS AND STAFF 24 

TRIBUNAL COUNSEL OFFICE 24 

Intake 24 

Case Description Writers 25 

Pre-hearing Legal Workers 25 

Lawyers 25 

Post-hearing Legal Workers 25 

Medical Liaison Office 26 

INFORMATION DEPARTMENT 27 

Library Activities 27 

Publications 28 

SYSTEMS DEPARTMENT 30 

New Computer System 30 

Case Tracking 30 

Other PC Based Applications 31 

Information Technology Security Guidelines 32 

Help Desk 32 

Minicomputer Performance 32 

Computerized Accommodations for Disabled Members 32 

STATISTICAL SUMMARY 33 

Cases Received 33 

Cases Closed 33 

Remaining Inventory 34 

Case Completion Times 34 

Hearings and Decisions 34 

FINANCIAL MATTERS 35 

APPENDIX A 

GUIDELINES FOR REVIEW OF DRAFT DECISIONS 45 

APPENDIX B 

VICE-CHAIRS AND MEMBERS IN 1992-93 49 

VICE-CHAIRS AND MEMBERS -- RE-APPOINTMENTS 51 

VICE-CHAIRS AND MEMBERS -- EXPIRED APPOINTMENTS AND RESIGNATIONS 52 

NEW APPOINTMENTS DURING 1992-93 52 

SENIOR STAFF 53 

MEDICAL COUNSELLORS 53 

APPENDIX C 

AUDITORS' REPORTS AND FINANCIAL STATEMENTS 55 



-IV- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



INTRODUCTION 



The Workers' Compensation Appeals Tribunal is a tripartite tribunal established in 1985 to hear 
appeals from the decisions of the Ontario Workers' Compensation Board. It is a separate and 
self-contained adjudicative institution, independent of the Board. 

This Report is the Tribunal Chair's and the Tribunal's annual report to the Minister of Labour 
and to the Tribunal's various constituencies. It describes the Tribunal's operational experience 
during the reporting period and covers particular matters which seem likely to be of special 
interest or concern to the Minister or to one or more of the Tribunal's constituencies. The 
reporting period for this report is the two-year period from January 1, 1992, to December31, 1993. 

An "annual" report covering a two-year period is, of course, a novelty. The resort to a two-year 
reporting strategy on this occasion was motivated by considerations of expediency and cost. 
Writing and producing the Annual Report has always been a significant burden on this Tribunal's 
administrative resources, and in 1993 the competition for those resources was especially acute. 
When preparation of the 1992 annual report fell behind its schedule to the point where it became 
clear that it would not be available until September or October of 1993, it seemed, from a 
resources and cost point of view, sensible to merge the 1992 report with the 1993 report. 

This Report comprises, in effect, two reports: the Report of the Tribunal Chair and The Tribunal 
Report. The Report of the Tribunal Chair reflects the personal observations, views and opinions 
of the Chair. The Tribunal Report covers the Tribunal's activities and financial affairs, and 
developments in its administrative policy and process. 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



REPORT OF THE TRIBUNAL CHAIR 

THE TRIBUNAL'S PERFORMANCE 

Through 1992 and 1993 the Tribunal's appeal procedures and process continued to meet with 
general acceptance, its expenses remained within approved budgets and it succeeded in 
responding well to the cost-cutting pressures implicit in this era of radical fiscal restraint. The 
Tribunal also continued to produce its usually high quality of decisions. We have, however, a 
burgeoning caseload problem which has already caused some increase in our turnaround times. 

Given the challenges the caseload increases are already presenting and the serious difficulties 
they seem likely to pose in the near future — particularly in this time of radical fiscal restraint — 
it is important that the Minister and the Tribunal's constituencies be aware of the possible shape 
and the probable causes of what seems likely to become in the not so distant future something of 
a caseload crisis. 

THE DEVELOPING CASELOAD PROBLEM 
The Present Caseload 

The main features of the caseload growth as it is being experienced at the end of 1993 may be 
summarized as follows. 

1. From 1988 through to the end of 1991, the Tribunal experienced a stable caseload intake (about 
1,500 to 1,600 cases a year). The major amendments to the Workers' Compensation Act in 
1989 (Bill 162) had been expected to produce increased levels of appeals but by the end of 1991 
(the last reporting period) these had not yet materialized. However, the impact of those 
amendments began to be felt in 1992 and has continued through 1993. 

2. The caseload increases delivered to the Tribunal a total 12-month intake that is 36 per cent 
above the traditional intake in 1991. 

3. A chart showing the month-by-month intake for 1991, 1992 and 1993, and a graph of the trend 
lines in 1991 as compared to 1993 are attached (Figures 1 and 2, p. 2). The caseload lines are 
trending upwards and there is every reason to believe that what has turned up in the data so far 
is only the forerunner of even greater increases to come. 

4. If we project the 1993 trend line to the end of 1994 that is, if only the same rate of increase is 
experienced in 1994 as was experienced in 1993, our 1994 intake will total 2,532 cases — 62 per 
cent more than the 1991 intake. If, as seems possible from the analysis of outside factors set 
out below, the rate of increase were not to remain steady but to climb, we could very quickly be 
looking at a 1994 intake figure that was double that of 1991. 

5. The impact the Tribunal has already experienced as a result of the caseload increases that have 
materialized to date may be seen in various indicators. The Tribunal's total inventory of cases — 
the number of cases lodged at various stages in the Tribunal's processes from initial intake to file 
closing — was 1,320 at the end of 1991, and will be 1,700 at the end of 1993 (a 28.5 per cent 
increase). The number of cases in the post-hearing or decision-writing stage of the Tribunal's 
processes was 525 at the end of 1991 and will be 650 at the end of 1993 (a 24 per cent increase). 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 





Cases Received 




1991 


1992 


1993 


January 


132 


111 


135 


February 


110 


235 


168 


March 


101 


152 


204 


April 


140 


129 


157 


May 


157 


148 


195 


June 


135 


162 


200 


July 


182 


162 


188 


August 


116 


134 


183 


September 


114 


144 


168 


October 


139 


137 


173 


November 


117 


145 


194 


December 


117 


145 


185 


TOTAL 


1560 


1804 


2150 


(Average) 


130 


150 


179 



Figure 1 TOTAL INCOMING CASELOAD BY MONTH 











20C 












1993 Trend / 


f / 


180 i 




//? 




160 i 








140 




1991 Trend 






120 










100 


-1 1 1 1 1 1 1 1 r— 


— I 1 1 1 1 1 I r— 


— I 



Jan Mar May Jul Sep Nov Jan Mar May Jul Sep Nov Jan Mar May Jul Sep Nov 

91 91 91 91 91 91 92 92 92 92 92 92 93 93 93 93 93 93 



Figure 2 TREND ANALYSIS OF INCOMING CASELOAD 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



6. We are not currently experiencing any backlog in the sense of blocks of cases on which no 
work is being done, but the extra work generated by the increased caseload (Tribunal Counsel 
Office staff are experiencing, for instance, individual caseloads that are 30 per cent to 40 per 
cent higher than they were two years ago) is resulting in a general slowing of the processes. 
Cases in which final decisions were released at the end of 1993 had spent on average 20 per 
cent more time in the Tribunal's system than cases in which the final decisions were released at 
the end of 1992. 

Portents of Caseload to Come 

That we are seeing in these figures only the beginning of what rould become a major caseload 
crisis is evident from a number of significant upstream events which seem very likely to generate 
even larger increases in the caseload intake in 1994 and beyond. These events are as follows: 

1. There has been a leap in adjudication activity at the WCB in 1993. The Decision Review Branch 
(DRB) doubled its decision output in 1993 as compared to its usual production levels. The 
Hearings Officer and Re-employment Branch appeals were 65 per rent over their usual levels, 
portending unusually high decision production in 1994. 

(There is some reason to think that this is a short-term production increase, as it reflects a 
determined effort by the WCB to reduce DRB backlogs that had reached unacceptable levels, 
and comes at a time when the number of incoming claims at the WCB is continuing to drop. 
However, the appeals pattern for the post Bill 162 benefits (wage loss, supplements, and 
non-economic loss awards) is not yet established and there is a potential for a significant 
increase in the number of appeals per case as compared to the pre-1989 era. Also, with new 
advocacy resources (see below), and a growing number of areas where the Board is continuing 
to apply interpretations of the Act which it is known will be rejected at WCAT (see also below), 
there is cause to expect that the proportion of cases that will be appealed will go up.) 

2. Hearings and Re-employment Branch decisions are the immediate source of the bulk of the 
Tribunal's caseload. But because of the time it typically takes for these decisions to turn up in 
appeals at WCAT, it is apparent that the WCB's 1993 production increases will not be 
significantly reflected in WCAT's 1993 intake statistics. That particular wave may be expected 
to reach the Tribunal during 1994 and 1995. 

3. It is well understood that one of the important determinatives of WCAT's caseload has always 
been the limitations in the system's advocacy resources. There has always been a proportion of 
cases that have been waylaid on their way to the Tribunal through being parked on the waiting 
lists of advocacy centres. Four notable events relative to the advocacy resources have 
significant implications for WCAT's caseload — at least in the near term. 

First, the Ontario Federation of Labour (OFL) has taken up the training of workers' 
compensation advocates in a major way. With full-time staff, an earmarked budget of $700,000 
a year and additional support from various unions, regular courses first offered in February 
1991, have to date graduated 375 union people from their third-level courses. Ninety-five per 
cent of these are new additions to the advocacy pool. 

OFL training of new advocates may be expected to impact directly on the Tribunal's caseload 
intake as appeals previously located in the advocacy backlogs now find their way into the 
hands of these new advocates. It is understood, for instance, that with the assistance of the 
OFL, the Office of the Worker Adviser (OWA) is now routinely referring all cases involving 
unionized injured workers to union advocates for representation. 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Secondly, in response to extraordinary caseload pressures, the OWA was granted what in these 
times was an unprecedented Treasury-Board-approved, in-year budget increase in 1993. 

Thirdly, that increase included $450,000 of new core funding for non-union groups of injured 
workers. This core funding may be expected in due time to produce further advocacy 
resources, as well as enhanced awareness of appeal rights amongst non-union workers. 

Fourthly, we are advised that beginning in 1994, the OWA will be embarking on a new strategy 
of renewed commitment to accepting only cases which the Office is equipped to handle in a 
reasonable time. Waiting lists (which in some offices currently are as long as 28 months) are to 
be pared, with workers who cannot be represented being encouraged and assisted to pursue 
their appeals themselves. 

It is impossible to predict the full consequences for the Tribunal of this change in OWA policy, 
but we have to expect that some significant proportion of the cases in the present backlogs will 
now make their way to the Tribunal ahead of the schedule that would have pertained prior to 
that change in policy. These promise also to be cases that will present extra complication for 
the Tribunal by reason of the absence of professional representation. 

Increasing Complexity 

The developing caseload problem in the appeals system generally, and at the Tribunal in 
particular, is also not just a function of increased numbers of cases. We are, at the same time, 
experiencing a marked increase in the average complexity of appeal cases. 

The major influence here is the nature of the issues arising under the Bill 162 reforms, with the 
re-employment cases being particularly troublesome from this point of view. The increased 
complexity shows up in the Tribunal's data as increases in the average number of hearings 
required to dispose of a case, increased numbers of days for particular hearings, a higher 
percentage of cases requiring post-hearing procedures, and longer decision-making processes on 
average. 

WCAT's Response to the Caseload Problem 

In the light of the increase in caseload intake which the Tribunal is actually experiencing, and 
the high probability of much more serious increases to come, it was obvious the post-1993 budget 
submission could not be based on a business as usual approach. The Tribunal is at a new point of 
departure, and, in the Chair's view, measures of a different quality will be necessary. 

It remains a fact, however, that the ultimate, actual effect of these upstream events on the 
Tribunal's caseload cannot be calculated with certainty. And, in this era of radical fiscal restraint, 
the Chair believes that addressing only caseload problems that have actually materialized is the 
only feasible strategy. This strategy implicitly contemplates periods of transition when the 
Tribunal's capacity to cope will, in point of fact, be outrun by rapidly developing caseload 
increases. And, during these periods of adjusting production capacity to new realities, case 
delays may be experienced that would otherwise be unacceptable. However, it seems to the Chair 
that this is an unavoidable cost of prudent fiscal management in an era of restraint that cannot be 
avoided. 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



The Chair believes, therefore, that this new caseload situation must be addressed on a gradual 
basis. For 1994, he will be proposing a relatively conservative budget increase that would give the 
Tribunal a reasonable prospect of coping with the increased caseload already arriving at the 
Tribunal while holding the additional delays within reasonable bounds. He acknowledges, 
however, that the need for a more radical response may well become clear — even before the end 
of 1994. 

THE TRIBUNAL'S COST-CUTTING PERFORMANCE 

In this era of unprecedented fiscal restraint and radical constriction of public service budgets, 
an accounting of the Tribunal's response to these new realities is obviously indicated. The 
following is a list of the most prominent measures, most of which were initiated during 1993. 

Re-organization of Public Access to Decision Database 

WCAT's full-text electronic database has in the past been available through a customized 
database provided and maintained by Southam Electronic Publishing's Private File Service. 

In 1993, we negotiated a contract with Southam to move the database into its commercial 
service, Infomart Online, thus eliminating the substantial annual fee we had paid in respect of 
the customized database. 

In-house Production of W.C.A.T. Reporter 

The year 1993 marked the end of our publication contract with Carswell and the beginning of 
the in-house production of the W.C.A.T. Reporter. There will be no change in the look of the 
Reporter other than the removal of the Carswell name, but all production work with the 
exception of the actual printing will now be done by the Tribunal's Publications Department. The 
first volume to be produced under this new arrangement will be volume 28 which will be released 
in April 1994. 

The move to in-house production will substantially reduce the cost of producing the Reporter. 

Increased Subscription Fees 

We have embarked on a three-year schedule of increases in our publication charges that is 
designed ultimately to have the Tribunal in a full cost-recovery position with respect to its 
publications. 

Court Reporters 

We have decided to experiment with the elimination of court-reporter services for most 
hearings held at the Tribunal's offices in Toronto. The reporters will be replaced by recording 
equipment operated by panel members. By the end of 1993, these arrangements were nearing 
completion. It is expected that the first taping of hearings will begin early in 1994. If the 
experiment proves successful in Toronto, we plan to then extend it to out-of-Toronto hearings. 
The ultimate savings are difficult to predict with confidence but are potentially significant. 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



WCB Transcripts 

WCAT's long-standing policy of automatically ordering transcripts of WCB Hearings Officers' 
hearings in every appeal was discontinued in July 1993. They are now being ordered on an 
as-needed basis. This change will generate substantial savings in 1994. 

Reduced Expenditures On Supplies and Office Equipment 

In 1991, we were released from the obligation to use central, government-established sources 
for certain categories of supplies. We have taken full advantage of the resulting flexibility, and in 
1992 and 1993 stringent competitive sourcing by the Tribunal's Chief Administration Officer and 
her staff, coupled with a redoubling of efforts to minimize and economize, has led to a substantial 
reduction in the Tribunal's expenditures on supplies and equipment. 

Change in Scheduling Strategies 

The Scheduling Department was the first section of the Tribunal to be seriously overburdened 
by the increasing caseload. The Appeals Administrator's review of the situation persuaded the 
Tribunal that it could no longer afford to be in the business in every case of negotiating with the 
parties for the establishment of a hearing date. 

In November 1993, we began experimenting with a different strategy. The Intake Department 
makes an initial unilateral selection of a hearing date (from a roster of dates supplied by the 
Scheduling Department) and at the point when the Case Description is distributed advises both 
the representatives and the parties that their hearing has been fixed for that date. (The date 
specified is usually about four months ahead of the distribution date.) 

The parties or representatives are free to advise the Tribunal that the date is not convenient. If 
they do so, at that point the Scheduling Department undertakes the negotiation of an ad hoc date. 
The change, however, puts parties' representatives in the position of having to say no rather than 
yes — and of having to explain a "no" to their clients. 

The experience so far indicates that the new strategy may substantially reduce the Scheduling 
Department's workload. 

Withdrawal Initiatives 

Tribunal staff are being encouraged to suggest to parties or their representatives that they 
withdraw cases which do not appear to be hearing-ready. 

Of course, this only postpones the Tribunal's work on the file. However, outright removal of 
premature cases from the caseload stream ensures that work is not wasted or duplicated. 
Obviously, when a party is not represented, care must be taken not to encourage a withdrawal 
when no purpose would in fact be served. 

To assist with the early identification of these types of cases, we have also recently begun work 
on an amendment to the Tribunal's application form whereby applicants would be specifically 
invited to say in their own words why they think the Board's decision is wrong. 



6- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Pre-hearing Conferences in Out-of-Toronto Hearings 

We had been experiencing a disproportionate number of out-of-Toronto hearings that had to be 
adjourned after the panel had travelled to the hearing location. Beginning in 1992, we have been 
attempting to use pre-hearing telephone conferences between the panel and the parties and their 
representatives, as a means of minimizing hearing-day surprises. At these conferences, 
issue-agenda questions and evidence issues are resolved, so that when the hearing is convened, 
everybody is ready to go and knows what to expect. 

Where a case presents itself to the Tribunal Counsel Office as especially difficult from an 
issue-agenda or evidence perspective, pre-hearing conferences will also be held in Toronto cases. 
However, in Toronto, there is not the same need since Toronto is where the Tribunal's offices are 
located, and the panel members as well as the parties and their representatives usually live in the 
vicinity. In those circumstances, if there proves to be a problem with proceeding with the first 
day's hearing, the allocated time can be converted to what is effectively a pre-hearing conference, 
without any cost impact. 

Changes to Case Description Formats 

In 1993, we began experimenting with the development of more simplified Case Description 
formats in certain categories of cases. 

Strategies for Shortening the Time Required to Write Reasons 

We have decided to revisit the problem of writing reasons in light of our now extensive 
experience, to see if there are not some strategies that could be devised that would shorten the 
time and resources required in this part of the Tribunal's work. We remain committed, however, to 
maintaining the quality of decisions and reasons. 

Internal discussions to date have raised a number of possibilities for consideration. 

For example, is it feasible and/or appropriate, we are beginning to ask, to write reasons in some 
kinds of cases primarily for the losing party or parties, rather than for the range of audiences for 
which our reasons are currently written? This approach would lead to reduced descriptive and 
background material (the parties know what the case is all about) and to focusing the reasons 
primarily on the points that were important to the parties and with which the panel did not agree. 

Reasons of that nature would provide limited help to parties in future cases and would likely 
contribute little to the Tribunal's developing understanding of issues. They might also present 
something of a problem for the Tribunal in dealing with subsequent requests for reconsideration 
or with complaints to the Ombudsman. However, decisions of that nature could be written faster 
and would serve the parties' basic interests. 

We are also now agreed that where a panel finds a Hearings Officer's analysis on a particular 
issue persuasive, it is sensible and appropriate in the panel's reasons simply to adopt that analysis 
by reference and get on to dealing with other issues. 

In 1994, we will also be considering whether there are more efficient decision formats that 
could be designed for particular categories of cases. 

All of this will continue to be the subject of discussion with the Tribunal's Advisory Group. 



■ 7- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Space 

The Tribunal has a serious space problem and at the end of 1992 we obtained Ministry of 
Labour and Management Board approval to expand into contiguous space that had become 
available at the Tribunal's existing location. However, before the lease arrangements could be 
completed, the government's 1993 in-year freeze on all uncommitted public service expenditures 
was announced. In the spirit of that direction, and in the light of the increasingly rigorous restraint 
environment generally, we decided that the expansion and the costs associated with the 
expansion must be postponed. 

We continue to be creative in finding ways to utilize every corner of space and, for the time 
being, we can make do. There is a point, however, beyond which space limitations begin to 
intrude too seriously on the Tribunal's work and to contribute too seriously to the stress of 
members and staff, and we are getting very close to that point. We will be exploring new space 
remedies in 1994. 

The combination of the increasing caseload and limited space is expected to lead in 1994 for 
the first time to shortages in hearing-room capacity. We are planning to deal with those shortages 
in the short run through ad hoc arrangements for the use of hearing rooms or meeting rooms in 
nearby government or other agency facilities. 

Postponement of the Second Phase of the Case Tracking System 

In accord with the government's freeze on uncommitted expenditures, we have also postponed 
the development of the planned second phase of the Case Tracking System. 

Social Contract Arrangements 

After an initial assignment (along with the WCB) to the main Agencies, Boards and 
Commissions (ABC) Sector, WCAT was eventually assigned to a Sub-sector of the ABC Sector 
which, in addition to WCAT, included four other agencies: the Art Gallery of Ontario, the Royal 
Ontario Museum, the Ontario Pension Board and the Niagara Parks Commission. The common 
denominator amongst these agencies was that each of them had bargaining units represented by 
OPSEU. 

Lengthy negotiations over the course of several days in July 1993, produced a framework 
agreement to which the unions, the five agencies and the government subscribed. 

Its major features are these: 

1. The agreement was acceptable to the Minister of Finance, thus relieving the Tribunal of the 
more onerous obligations under the fail-safe provisions of the Social Contract Act. 

2. The agreement allowed for 100 per cent of productivity savings to be set off against the 
reduction targets (this may be compared with the Ontario Public Service Sector agreement 
which permits only 50 per cent of savings to be set off)- 

3. It specified the order in which the various cost-reduction measures must be resorted to, with 
productivity savings first, followed by unpaid leave days and then, only as a last resort, lay-offs. 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



4. It confirmed that the identification and quantification of productivity savings available for 
set-off against the reduction targets were to be solely the decision of management subject to 
management's obligation to participate in a structured consultation process with the union and 
its non-bargaining unit staff and to provide financial information that would make that 
consultation meaningful. 

5. It required the creation of a joint committee as the vehicle for consultation between the 
employer and the union and bargaining-unit staff. 

Following the signing of of the framework agreement, a "local agreement" was negotiated with 
OPSEU, and a local plan for non-bargaining unit members was developed and posted. 

The Tribunal's expenditure reduction target is $327,700. 

All along we had been assuming that for social contract purposes we would be allowed to treat 
Tribunal OIC members as Tribunal employees. However, in August we were advised that all OIC 
appointees throughout government were to be considered to fall within one group and designated 
for social contract purposes as employees of the Minister of Finance and put under the Public 
Service Sector agreement. The result was that the Tribunal's adjudicators were separated from 
Tribunal staff in the social contract arrangements and their unpaid leave days are being 
determined on the basis of criteria that do not take the Tribunal's particular circumstances into 
account. 

At the time of writing, it appears that in the first social contract year (to the end of March 1994) 
OIC members will be required to take 10 unpaid leave days. This contrasts with the 4 to 6 unpaid 
leave days which it appears will be all that is required of WCAT staff, once productivity savings 
are taken into account. 

To accommodate the unpaid leave days and minimize the impact on the Tribunal's hearing 
days, the Tribunal closed for three days over the 1993, Christmas-New Year's season. Other 
unpaid leave days in the first social contract year will be taken individually on days selected by 
each member or staff. We are attempting to accommodate the unpaid leave days without reducing 
the number of scheduled hearings. 

MEMBERS' CODE OF PROFESSIONAL RESPONSIBILITY 

In April 1993, after a year-long process of development and internal and external consultation, 
a new Code of Professional Responsibility for members of the Workers' Compensation Appeals 
Tribunal was published. 

This Code applies to all Tribunal members: the Chair, the vice-chairs and the representative 
members, both full-time and part-time. It defines the professional obligations and restrictions 
which arise implicitly from a member's role at the Tribunal. 

The Code reflects the unique features of the Appeals Tribunal and of the members' particular 
roles in the Tribunal's adjudicative activities, and is responsive to the Chair's and members' 
experience with issues of professional responsibility since the Tribunal's inception. A detailed 
description of the Code's Tribunal context has been incorporated in the Preamble. 

The Code encompasses much of the Tribunal's previous Conflicts of Interest Policy which was first 
adopted in 1986. It has been expanded, however, to address some especially difficult questions that 
have been the subject of more recent discussions both within the Tribunal and amongst the employer 
and worker communities. The nature of permitted outside activities is a particular example. 

Copies of the Code will be available from the Information Department. 



9- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 






WCAT HARASSMENT POLICY 

After extensive internal discussions, the Tribunal adopted in March 1992, a formal Harassment 
Policy complete with specified complaint and investigative procedures. The policy closely tracks 
the corresponding government policy. 

UNION CERTIFICATION 

Local 527 of the Ontario Public Service Employees Union has been certified as the bargaining 
agent for Tribunal staff. The Tribunal was advised of the certification decision on December 9, 
1992. The Tribunal has been involved with the union in negotiating various aspects of the social 
contract arrangements as well as working with them in the development of a first agreement. By 
the end of the reporting period, the first agreement was still under discussion. 

ALTERNATE CHAIR 

The Alternate Chair position at this Tribunal is a major element in the Tribunal's organizational 
structure. The Chair's administrative responsibilities are effectively shared between the Chair 
and Alternate Chair in a relation akin to that of a partnership. 

Since its inception, the Tribunal has had the benefit of a series of strong and effective talents in 
that position — Jim Thomas, Laura Bradbury and Maureen Kenny. 

In the summer of 1993, Ms. Kenny decided to return to the purely adjudicative role of a 
Vice-Chair. Zeynep Onen, one of the Tribunal's most experienced Vice-Chairs and a former senior 
TCO lawyer agreed to assume the Alternate Chair position and this change was effective August 
1, 1993. 

The tradition of strong leadership in the Alternate Chair's role continues. 

DRAFT-DECISION REVIEW AND THE INSTITUTIONALIZING 
OF TRIBUNAL DECISIONS 

The release in 1992 of the first decision of the Supreme Court of Canada to disapprove of 
aspects of a tribunal's draft-decision review process — Tremblay v. Quebec (Commission des 
Affaires Sociales) (1992), 90 D.L.R. (4th) 609 — was the occasion for reviewing the Tribunal's 
own draft-review process. Some refinements to our procedures were made and formal 
Guidelines for Review of Draft Decisions were adopted. These describe the Tribunal's 
procedures in detail and appear as Appendix A to this Report. 

In 1992, in a paper presented as part of the Law Society's Special Lectures on Administrative 
Law, X the Chair had occasion to comment on the institutionalizing of tribunal decisions and on 
the need, generally, for a tribunal to have an effective corporate presence in its own adjudication 
processes. The paper may be of interest to the readers of this Report as it reflects the Chair's 
experience at WCAT and describes views which have obviously influenced the development of 
WCAT structures. 



1 Ellis, "Comments on the Institutionalizing of Tribunal dec'\s\ons\Admi n/slral/iv Law: Principles, Practice and PI iiralisni, 
1992 LSUC Special Lectures, at p. 357. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



WCAT DECISIONS AND WCB POLICY 

The divergence between the Appeals Tribunal's interpretations of the Workers' Compensation 
Act and ongoing WCB policy is widening. 

Under section 93 of the Act (previously section 86n), the WCB board of directors has the 
power, and also, it has always been thought , the responsibility, to review confirmed Tribunal 
interpretations of the Act that conflict with WCB policies. The review is conducted with a view to 
either directing a correction of such interpretations where it finds them to be wrong or 
conforming WCB policy to them where it finds them to be right. 

During this reporting period, however, the WCB's commitment to that view of the board of 
directors' responsibilities appears to have waned. There are now a number of issues — at least 
two of them of major significance — on which the Tribunal has consistently decided cases in 
reliance on interpretations that conflict directly with the WCB's administration of the Act, but in 
respect of which the directors have neither invoked section 93 nor intervened in the WCB's 
continued administration of the Act in breach of those interpretations. 

When WCB policy or practice conflicts with confirmed Tribunal decisions, one of the practical 
possibilities, it has now become evident, is that the board of directors may become actually or 
tacitly deadlocked on the issue — not willing or, perhaps, not able, either to disagree with the 
Tribunal's views or to change the Board's policy or practice. Indeed, these are circumstances that 
may even become commonplace, given the increasingly, de facto, bipartite nature of the board of 
directors' decision-making processes. 

In such circumstances, the directors' non-exercise of their section 93 powers, while a 
questionable strategy in terms of.the responsibilities contemplated by the Act, is admittedly an 
effective practical means for limiting the systemic impact of interpretations which in the ordinary 
course of the directors' proceedings can neither be accepted nor changed. 

It is a strategy, however, which distorts the system and undermines its integrity. For it creates 
— and implicitly condones — two official but conflicting sets of workers' compensation rights 
and benefits. And access to the special benefits of the second set is limited to the elite group of 
workers or employers who are familiar enough with the law to know that the "official" 
information provided by WCB administrators concerning those issues is not in point of fact 
determinative, and who have the stamina and resources required to take their cases to the final 
level of appeal. 

Implicit in such a strategy, as well, is the unwanted growth that must follow in the number of 
appeals in routine cases. The potential caseload implications may be seen in the experience of 
British Columbia and Quebec. In those two provinces, the failure or unwillingness of the 
workers' compensation boards to harmonize their policies with the decisions of external appeals 
bodies has been long entrenched. And, there, the appeals caseloads have traditionally been 
several times the caseload experienced in Ontario. 



See Weiler, Reshaping Workers' Compensation for Ontario, 1980, at p. 116; Proceedings of the Standing Committee on 
Resources Development, Hansard Official Report of Debates, Legislative Assembly of Ontario, Second Session, 33rd 
Parliament, March 10, 1987, No. R-28, at pp. R-635 to 641; WCAT's Second Report, 1986-1987, at p. 10; zndReviewof 
Decisions No. 915 and 91 5A (1990), 15 W.C.A.T.R. 247, at pp. 250 and 252, where the Ontario WCB board of directors 
describes WCAT's role as the "judicial branch of the workers' compensation system" and refers to WCAT's adjudication of 
appeals as being "essentially complimentary" to the administration and governance of the Act by the board of directors. 



11 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



The WCB administrators also have an important role to play if WCB policies and Tribunal 
decisions are to remain essentially congruent. For it is they, not the part-time directors, who must 
be conscientious in identifying WCAT interpretations which conflict with Board policies or 
practices, and in taking such reasonable steps as are available to them to ensure that such 
conflicts are resolved. If the board of directors is to meet its responsibilities, the administrators 
must accept theirs. 

Steps for ensuring the basic congruency between Tribunal decisions and WCB policy and 
practice that are available to the administrators include: 

1. providing the Tribunal with full and persuasive submissions on errors or misunderstandings in 
the Tribunal's interpretation so that the next Tribunal panel to consider the same issue may, 
with the benefit of such submissions, come to a different conclusion; 

2. weighing the significance of the decision having regard, for example, to the persuasiveness of 
its reasons, the extent to which it is supported by other Tribunal decisions, or any unusual 
aspects of the facts on which it is based, and perhaps deciding to wait and see whether the 
decision might in the course of tune prove to be merely an anomaly; 

3. recognizing the correctness of the Tribunal decision and modifying the practices in question or 
proposing policy changes to the board of directors; or, 

4. when all else fails, recommending to the board of directors that it exercise its section 93 
powers. 

During the reporting period, all of these activities were carried on, but it is the Chair's 
impression that in the last year or so the commitment to the second, third and fourth steps has 
lessened, and that there is a growing tendency for the administration to note, but then to ignore, 
the policy implications of Tribunal decisions. 

When the Board's administrators decide that it is acceptable or necessary for them to ignore 
entrenched conflicts with Tribunal interpretations, the systemic consequences are indistinguishable 
from those that flow when the directors ignore their section 93 powers. 

HIGHLIGHTS OF THE 1992-93 CASE ISSUES 

The years 1992 and 1993 saw a number of interesting developments in the Tribunal's case law. 
Unfortunately, it is never possible to do more than highlight some of the legal, factual and medical 
issues which the Chair found of particular interest in this portion of the Chair's report. The issues 
are presented in no particular order of importance. Some have been noted previously, while 
others are new. 

The Workers' Compensation Act has been amended several times, and a consolidating statute 
(R.S.O. 1990, c. W. 1 1) was enacted during this reporting period. For ease of reference, the current 
Act incorporating the changes introduced by Bill 162 will be called the 1990 Act. The earlier 
versions of the Workers' Compensation Act will be referred to as the pre-1989 Act and the 
pre-1985 Act. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1.992 and 1993 



Re-employment Under the 1990 Act 

This reporting period saw the release of a number of Tribunal decisions dealing with the 
re-employment rights created by the Bill 162 amendments. Previously, employers were not 
required to offer to re-employ injured workers. The new rights and obligations not only pose new 
questions of statutory interpretation, but also require the Tribunal to consider more general 
issues than those posed in the typical entitlement case. For example, the way an employer is 
structuring its business in response to financial pressures or the effect of a collective agreement 
may be relevant considerations under the Bill 162 amendments. 

The 1991 Annual Report noted that the Board had provided general submissions to the Tribunal 
on the Board's interpretation of the re-employment provisions following the release of Decision 
No. 372/91 (1991), 19 W.C.A.T.R. 317. Decision No. 372/91 had approached the requirement that 
the Board give notice of fitness quite strictly, and had also held that the employer's obligation to 
offer to re-employ did not arise until the employer had received a valid notice of fitness from the 
Board. Decision No. 605/91 (1991), 21 W.C.A.TR. 131, which was the only decision to consider 
the Board's submissions in 1991, also held that the Act required the Board to give notice of fitness 
to an employer before the obligation to re-employ could arise. 

While a few decisions in 1992 agreed with the two early Tribunal decisions, more recent cases 
have held that the 1990 Act creates a general obligation to re-employ. These cases have held that it 
is possible to make a determination of non-compliance where a worker is let go after returning to 
work, whether or not the Board has issued a notice of fitness. Similarly, the section 54(10) 
presumption applies where a worker is let go within six months, whether or not there has been a 
previous Board notice. (See, for example, Decisions No. 716/911 (1992), 22 W.C.A.TR. 181, 
746/9112 (1992), 23 W.C.A.TR. 260, 896/91 (July 9, 1992), 366/921 (1992), 24 W.C.A.TR. 199, 
449/92 (1992), 25 W.C.A.TR. 148, and 507/921 (1993), 28 W.C.A.TR. [page numbers for this 
volume were not available at the time of publication]. Compare Decision No. 288/91 (1992), 22 
W.C.A.TR. 132.) Recent Tribunal decisions have also clarified that it will only be in exceptional 
cases that a notice of fitness will be found to be inadequate (see, for example, Decision No. 
552/91 (1992), 23 W.C.A.TR. 183). 

Tribunal decisions have not accepted the current Board policy that an employer must have 
"just cause" before it can terminate a worker without breaching its re-employment obligations. 
The Tribunal has reasoned that the intent of the 1990 Act is to place the worker in the position he 
or she would have been in if the workplace accident had not occurred. This reasoning is also 
supported by a Supreme Court of Canada decision on similar wording in a Quebec statute {La 
France v. Commercial Photo Service Inc. [ 1980], 1 S.C.R. 536). Thus, the Tribunal asks whether 
the employer's reasons for termination are unrelated to the workplace injury or are an attempt to 
avoid the re-employment obligations, and whether these are the only reasons. (See Decisions No. 
716/911, 296/921 (June 25, 1992), 139/92 (1992), 24 W.C.A.TR. 113, 704/91 (October 15, 1992), 
233/93 (1993), 28 W.C.A.TR., and 355/92 (1992), 24 W.C.A.TR. 184. While not all of these 
decisions are unanimous, the majority decisions and unanimous decisions have consistently 
taken this view.) 

The Tribunal has interpreted the section 54(10) presumption similarly to the section 4(3) 
presumption, which applies when an injury by accident occurs in or arises out of employment. 
The section 54(10) presumption is generally said to be rebutted by clear and convincing evidence 
that the termination is for reasons unrelated to the compensable disability. (See Decisions No. 
507/921, 716/911 and 704/91.) 



13 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



The Tribunal was called on to apply the new re-employment provisions to a variety of workers 
(for example, short-term contract workers hired under particular terms and conditions 
(Decisions No. 296/921 and 233/93), union workers with seniority rights (Decision No. 1 73/92 
(1992), 24 W.C.A.T.R. 132), and probationary workers (Decision No. 704/91), and to a variety of 
situations (see, for example, Decisions No. 335/92 (1992), 25 W.C.A.T.R. 80, and 852/92 (1993), 28 
W.C.A.T.R.). 

Another developing area regarding the re-employment provisions is penalty assessment. 
Where the re-employment obligation is breached, the 1990 Act gives the Board the authority to 
award benefits to the worker and to levy a penalty against the employer. Board policy currently 
indicates that the maximum penalty (which is set by section 54(13) as the injured worker's net 
average earnings for the preceding year) should generally be imposed unless the employer cannot 
rehire the worker for reasons beyond its control (e.g., a market collapse) or the employer 
subsequently rehires the worker. 

Decision No. 605/91F (1993), 25 W.C.A.T.R. 10, held that the current, more onerous Board 
policy should not be applied retroactively to an employer who had appealed a 50 per cent penalty. 

While some Tribunal decisions have upheld a maximum penalty (see Decision No. 561/91 
(1992), 23 W.C.A.T.R. 128), a number have taken a more flexible approach. In particular, panels 
have considered the seriousness of the employer's misconduct and the employer's financial 
position (Decisions No. 730/91 (1992), 24 W.C.A.T.R. 71, 744/91 (1991), 21 W.C.A.T.R. 333, 769/91 
(1992), 24 WC.A.T.R. 94, and 449/92). 

The Tribunal has upheld the Board's view that the federal Government Employees 
Compensation Act incorporates the Ontario re-employment provisions, making them applicable 
to federal workers in Ontario (see Decision No. 716/911). 

Employment Benefits Under the 1990 Act 

In this reporting period, the Tribunal released its first decision on the section 7 obligation to 
make contributions for employment benefits for one year following a workplace injury. This 
provision was enacted at the same time as the re-employment provisions. Decision No. 427/921 
(1992), 24 W.C.A.T.R. 255, held that employer payments to a union to contribute to an RRSP 
pursuant to a collective agreement were covered by section 7. The panel noted that there was 
some ambiguity as to whether the Board could direct the employer to make the contributions; 
however, the Panel approved of the Board's use of a penalty which could be reconsidered on 
payment of the benefit, as an enforcement mechanism. 

The Tribunal's final decision in this matter, Decision No. 427/92 (1993), 27 W.C.A.T.R. 142, 
indicated that the Board's policy of imposing a mandatory minimum penalty for breach of section 
7 appeared to be inconsistent with the discretionary wording in section 7 and with the Board's 
policy developed under the similarly worded penalty provision in section 54( 13). The panel found 
no penalty should be imposed since the unpaid sum was small and did not cause any substantial 
hardship to the worker, and the employer acted in a good faith desire to put a test case to the 
Tribunal, and made the payment as soon as it received Decision No. 427/921. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Vocational Rehabilitation 

Prior to the 1990 Act, there was no statutory requirement to provide vocational rehabilitation 
services. The Board had a statutory discretion to do so under the pre-1989 and pre-1985 Acts, and 
had developed a number of policies on vocational rehabilitation. Vocational rehabilitation 
activities also had the potential to affect a worker's level of entitlement to supplementary benefits 
and temporary partial disability benefits under the pre-1985 and pre-1989 Acts. For workers 
covered by this earlier legislation, vocational rehabilitation activity is now also relevant to 
entitlement to a transitional supplement under section 147(2) of the 1990 Act. 

The 1990 Act created a new scheme of compensation for workers injured after December 31, 
1989. Vocational rehabilitation is central to this new scheme. The old pension assessment scheme 
was replaced with a compensation system tied to the loss of earnings caused by the compensable 
injury. The 1990 Act also imposed a new statutory obligation on the Board to offer rehabilitation 
services to reduce income loss due to a compensable injury. Vocational rehabilitation continues 
to be relevant to entitlement to temporary partial disability benefits under section 37(2)(b) of the 
1990 Act, but is now also relevant to a worker's permanent compensation. The 1990 Act requires 
consideration of the prospects of successful medical and vocational rehabilitation in determining 
a worker's future loss of earnings under section 43(7) (commonly called a FEL award). 
Rehabilitation, in particular medical rehabilitation, is also relevant to a determination of a 
worker's non-economic loss under section 42 (NEL award). 

Three decisions have issued which commented on the connection between vocational 
rehabilitation and a FEL award. See Derisions No. 344/93 (1993), 27 W.C.A.TR. 259, 500/93 
(1993), 27 W.C.A.r.R. 314, and 607/93 (1993), 28 W.C.A.TR. And see Decision No. 489/931 
(November 29, 1993), which asked for submissions on FEL awards. Decision No. 344/93 found 
that the Tribunal could retroactively authorize a worker's self-directed rehabilitation program 
pursuant to the Tribunal's ability under section 86(3) to make any order which the Board could 
make. The Panel approved the Board's practice of granting a nominal FEL sustainability award so 
that the worker could receive a FEL supplement while co-operating in an authorized vocational 
rehabilitation program. Decision No. 500/93 held that the Board's policy of paying transitional 
supplements retroactively if the worker successfully appealed should also apply to a successful 
appeal of a FEL supplement. 

This reporting period saw the beginning of a trend for panels to be more pro-active in 
identifying rehabilitation steps which should be taken. In one case, the panel retained a 
vocational rehabilitation consultant to provide evidence. See Decisions No. 924/91 (March 18, 
1993), 500/93 and 592/921 (February 16, 1993). Panels have also directed the Board to provide the 
worker with further rehabilitation services where the original services were not appropriate, or 
where circumstances had changed and the panel was satisfied the worker would now benefit 
from rehabilitation. See Decisions No. 490/92 (January 11, 1993) and 592/921. And see Decision 
No. 614/93 (1993), 28 W.C.A.TR. 

Occupational Stress 

The 1990 and 1991 Annual Reports record that the Board was then in the process of developing 
a policy on chronic occupational stress, in addition to its policy on stress claims resulting from 
traumatic and life-threatening events. Since no Board policy on chronic stress materialized 
during this reporting period, the Tribunal continued to adjudicate chronic stress appeals under 
the Act on a case-by-case basis. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



The Tribunal now appears to have abandoned the original approach to stress claims proposed 
in Decision No. 918 (1988), 9 W.C.A.TR. 48, that workplace stressors either be unusual, or that 
they be the predominant cause of a disability. No cases during the two years covered by this 
Report applied this test. 

This reporting period has seen the development of a new test, which addresses the problem of 
how to assess workplace stressors and the subjective reaction of workers to them. Decision No. 
631/91 (1992), 21 W.C.A.TR. 251, held that the test was whether there were stressors, usual or 
unusual, in the workplace and, if so, would a reasonable person in a similar situation find these 
stressors to be potentially disabling. Decision No. 717/88 (August 19, 1992) agreed that the 
reasonable-person test should be applied in deciding whether there were any workplace 
stressors. And see Decisions No. 636/91 (1992), 21 W.C.A.TR. 277, and 672/92 (December 11, 
1992). This test represents a middle ground between a purely objective and purely subjective 
assessment of workplace stressors. 

Stress claims are particularly challenging to adjudicate and may require a detailed review of 
the workplace. It is interesting to note that two cases during this reporting period were based on 
allegations of discrimination and harassment. Decision No. 198/92 (1992), 24 W.C.A.TR. 155, 
found that the allegations of racial discrimination were not objectively verifiable and the worker's 
stress was not compensable. In Decision No. 636/91, the panel reviewed allegations of sexual 
and racial harassment following the integration of male and female units in a correctional facility. 
The panel found that, viewed objectively, the workplace stressors were serious and a reasonably 
stable person would have been seriously affected. The worker's reactions were not markedly 
different, and her stress disability was compensable. And see Decision No. 586/91 (1993), 28 
W.C.A.TR., which found that the Act removes the right to sue for damages for sexual harassment 
which occurs in the course of employment. 

Decision No. 397/92 (January 28, 1993), which involved a claim for stress by a police officer, is 
also of interest. The panel noted that the worker's claim could equally have been accepted under 
t he current Board policy for psychological disability, which allows for entitlement for workplace 
stress arising from stressful incidents that are sudden, shocking or life-threatening. 

Occupational Disease 

Occupational disease cases involve workplace exposure to harmful processes or substances. 
The Tribunal's interpretation of the law in this area remains the same. Disabilities are 
compensable if they fall within the statutory definition of "industrial disease", or within the 
"disablement" branch of the definition of "accident." 

Occupational disease cases are among the most complex to adjudicate, since decisions often 
have to be made on the basis of developing, and often conflicting, medical and scientific 
knowledge. As Decision No. 645/93 (1993), 28 W.C.A.TR., notes, entitlement can be granted in 
the absence of supportive epidemiological evidence if there is persuasive medical and 
non-medical evidence which establishes, on a balance of probabilities, that there is a causal 
relationship between the work and the disability. 

Among the issues recently considered by the Tribunal are the relationships between full-body 
vibration and back disability (Decision No. 373/91 (December 14, 1992)), lung cancer and 
exposure to coke oven emissions and welding fumes (Decision No. 307/89 (January 10, 1992)), 
and manual work and Dupuytren's contracture (Decision No. 645/93 (1993), 28 W.C.A.TR.). 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Decisions No. 134/89 (1993), 26 W.C.A.T.R. 32, and 375/92 (1993), 28 W.C.A.T.R., extensively 
reviewed lung cancer and exposure to asbestos, and the medical evidence that asbestosis tends 
to precede the onset of lung cancer. The panels concluded that the intensity of exposure and the 
latency period are the two most important factors in assessing a causal relationship between 
asbestos and lung cancer. And see Decision No. 786/91 (January 19, 1993) which considered the 
medical controversy concerning a relationship between exposure to silica and lung cancer, when 
there is no evidence of silicosis. 

Workplace exposure can also aggravate a pre-existing condition, or can sensitize a worker to a 
particular substance. For an interesting discussion of the difference between exposure to 
irritants and sensitizers on an underlying asthmatic condition, see Decision No. 437/92, (1993), 
26 W.C.A.T.R. 181. Several decisions have considered how to assess a pension for asthma under 
the pre-1989 legislation. Decision No. 740/91 (1993), 25 W.C.A.T.R. 16, preferred the Quebec 
guidelines to the AMA guidelines in assessing pensions for pulmonary impairments. The Quebec 
guidelines use three different measures of impairment: level of bronchial responsiveness, level of 
bronchial hyperactivity and need for medication. And see Decisions No. 304/93 (1993), 27 
W.C.A.T.R. 244, and 61 7/93 (October 28, 1993) on pension assessments for asthmatic conditions. 

Hearing loss due to exposure to noise is treated as an industrial disease under the Act. The 
Tribunal now has substantial experience in reviewing hearing loss and tinnitus claims. See, for 
example, Decisions No. 789/90 (1992), 22 W.C.A.T.R. 84, 27/92 (January 20, 1993), 33/92 (January 
20, 1993), 356/92 (1993), 25 W.C.A.T.R. 116, 78/93 (October 22, 1993), and 405/93 (October 18, 
1993). Decision No. 434/89A (1993), 27 W.C.A.T.R. 1, considered the appropriate start date for 
entitlement to benefits under the Board's 1988 hearing loss policy, which reduced the entitlement 
requirements to a 35 decibel loss in one ear and 25 decibels in the other. The panel agreed with 
Decision No.915A (1988), 7 W.C.A.T.R. 269, that the common law requires limits on retroactivity 
where there is a change in policy because of an "overruling" based on legal or medical 
developments. The panel decided that July 10, 1976, was the appropriate start date, since that was 
when the Board knew or ought to have known of the relevant medical advances. 

Experience Rating of Employers 

NEER is an experience rating program which is intended to shift some of the burden of a rate 
group's costs to employers with greater claim costs. An employer's actual costs in a year are 
compared with the assessment rate for the rate group. The employer's costs for that year are 
considered in the calculation of the employer's assessment in each of the following three years. 

Decision No. 709/91 (1992), 23 W.C.A.T.R. 214, considered the proper interpretation of the 
transitional provisions which were adopted when the Board introduced a new NEER formula in 
1987. The Panel affirmed previous Tribunal cases which found that the Tribunal has the 
jurisdiction to hear all aspects of an employer's assessment appeal, but that the systemic effect on 
the Board's administration must also be considered. On the evidence in Decision No. 709/91, the 
panel accepted the employer's interpretation of the "best of three" formula. The Panel left open 
the possibility that the Board might devise a policy solution for handling future cases or might 
enter into further negotiations with the relevant industry association. An appeal involving similar 
issues was brought to the Tribunal in Decision No. 214/931 (1993), 27 W.C.A.T.R. 192, but the 
panel allowed it to be withdrawn at the employer's request to enable the Board to reconsider its 
decision. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Decision No. 509/92 (1993), 28 W.C.A.T.R., is also of interest. It dealt with the impact of the 
no-fault auto insurance scheme on NEER assessments. 

Associated Employers 

Decision No. 43/90 (1992), 23 W.C.A.T.R. 86, noted that there was no definition of an associated 
employer in the Act or regulations. The panel found that it was unreasonable to deem two 
companies to be related for assessment purposes solely on the basis of a family relationship. And 
see Decision No. 778/90 (1992), 23 W.C.A.T.R. 143, which considered the relationship between a 
principal and contractor under section 9(3) of the pre-1989 Act, and also the appropriateness of 
piercing the corporate veil. 

Decision No. 457/90 (1992), 22 W.C.A.T.R. 68, held that despite an employer having separate 
WCB account numbers for its various plants, an individual plant could not be treated as separate 
entity for penalty assessment where the individual plant was a fully integrated part of the 
company's operations and all plants were in the same rate group. 

Chronic Pain and Fibromyalgia 

Chronic pain and fibromyalgia have been issues of continuing interest to those involved in 
workers' compensation. While the Board and Tribunal initially took different views of whether 
chronic pain was within the scope of the Workers' Compensation Act , the WCB board of directors 
section 93 (then section 86n) review of June 1, 1990 {Review of Decisions No. 915 and 915A 
(1990), 15 W.C.A.T.R. 247) showed substantial agreement between the two institutions. The board 
of directors found that there was no need to direct the Tribunal to reconsider Decision No. 915 
(1987), 7 W.C.A.T.R. 1, and Decision No. 915A (1988), 7 W.C.A.T.R. 269, which had held that 
chronic pain was compensable and that the start date for compensation should be March 27, 
1986. However, the board of directors subsequently directed the Tribunal to reconsider a number 
of Tribunal decisions which had awarded temporary benefits for chronic pain prior to March 27, 
1986. 

The background to the Board's and Tribunal's treatment of chronic pain and fibromyalgia is set 
out in some detail in Appendix C to the Third Report and in the 1991 Annual Report. And see 

Decision No. 12R2 (1993), 26 W.C.A.T.R. 1. 

The Tribunal's reconsideration processes had been put on hold pending the board of directors' 
determination of a request to reconsider its section 93 direction. At the close of the last reporting 
period, the Tribunal was in the process of contacting the parties and rescheduling pre-hearing 
conferences. 

During this reporting period, two final Tribunal decisions issued in these cases. There have also 
been a number of interim decisions. Submissions from the Board have been obtained in several 
cases, and more decisions should issue in the next reporting period. 

The issues in dispute in the two final decisions included the relationship between the Board 
and the Tribunal on a section 93 review. Decision No. 757R (June 29, 1993) agreed with the earlier 
analysis in Decision No. 42/89 (1989), 12 W.C.A.T.R. 85, about the weight to be accorded to the 
Board's interpretation of law and policy when considering the very case in which reconsideration 
was directed. While the Tribunal is obliged to apply the Board's interpretation in reviewing the 
facts of the case, the Tribunal must also be satisfied the case was properly subject to a section 
93(1) review. In Decision No. 757R, the panel concluded, based on the wording of the original 



18- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



decision and more recent medical assessments, that the worker's compensable disability was 
organically based, and not attributable to chronic pain. Thus, Decision No. 757 (May 30, 1988), 
did not turn on the Board's interpretation of the appropriate retroactivity date for chronic pain, 
and the Tribunal was not required to reconsider. The Board was ordered to pay temporary total 
disability benefits for an organic condition, as originally ordered. 

Reconsideration was also denied in Decision No. 12R2, but for somewhat different reasons. 
Decision No. 12R2 concerned unique facts, as it was the only chronic pain case reviewed by the 
Board that was released prior to the adoption of the Board's chronic pain policy. The panel 
reviewed the handling of the worker's case in detail, and the impact of the section 93 review on it. 

In addition to the test proposed in Decision No. 42/89 for determining whether a case was 
properly subject to a section 93 review, Decision No. 12R2 found that other concerns, including 
natural justice concerns, could lead to a conclusion that a decision should not be reconsidered. 
While there were several process concerns, the panel's primary concern was that the Board's 
policy had been applied retroactively to a final Tribunal decision which had been released nine 
months before the policy was adopted. Reconsideration was denied and the Board was directed 
to implement the original decision. 

Turning to other chronic pain cases, the Tribunal has had occasion to review the Board's new 
Psychotraumatic and Behavioural Disorders Rating Schedule. See Decisions No. 722/92 (April 
29, 1993), and 571/91 (February 24, 1992). And see Decision No. 389/91 (February 6, 1992). 
Decision No. 741/90 (February 5, 1992), upheld the Board's use of the Psychotraumatic and 
Behavioural Disorders Rating Schedule in fibromyalgia cases. 

Canadian Charter of Rights 

The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada and 
protects the civil liberties of Canadians. Section 24(1) of the Charter provides that anyone whose 
rights or freedoms have been violated may apply to a "court of competent jurisdiction" to obtain 
such remedy as the court considers just in the circumstances. Section 52(1) of the Constitution 
provides that the Constitution is the "supreme law" of the land and any law inconsistent with the 
Constitution is "to the extent of the inconsistency, of no force or effect". 

As the 1990 Annual Report noted, the Tribunal has had few Charter challenges. Decision No. 
534/901 (1990), 17 W.C.A.TR. 187, was the most comprehensive Charter decision as of the end of 
1991. The Panel adopted the reasoning of the Ontario Court of Appeal in Cuddy Chicks Ltd. v. 
Ontario (Labour Relations Board) (1989), 62 D.L.R. (4th) 125, in holding that the Tribunal was 
not a court of competent jurisdiction under section 24(1) of the Charter, but that tribunals could 
hear challenges to their constituent legislation under section 52(1). The panel invited 
submissions on whether the Tribunal had the jurisdiction to decline to hear a Charter challenge 
under section 52(1). 

Subsequently, the Supreme Court of Canada released four decisions dealing with the Charter 
and administrative tribunals. While these decisions did not affect the panel's decision on section 
24(1), they clarified and changed the law on section 52(1). The panel considered section 52(1) 
again in light of the new law. 

Decision No. 534/90 (1992), 23 W.C.A.TR. 121, found that section 52(1) does not confer 
Charter jurisdiction on a tribunal; such jurisdiction exists only if the legislature expressly or 
implicitly intended to confer such jurisdiction on the tribunal. In determining the legislature's 
intent, it is particularly important to consider whether the tribunal's legislation authorizes it to 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



determine questions of law. Other factors to consider include: whether the tribunal determines 
questions of law in accomplishing its ordinary tasks; whether the tribunal's usual work involves 
application of complex legislative rules or regulations; whether the remedies available to the 
tribunal would be effective; whether the tribunal has specialized competence to make a valuable 
contribution to the constitutional issue in question; and issues of practicality and convenience. 
The panel concluded that a tribunal's jurisdiction under the Charter may or may not exist 
depending on the issue in dispute. 

Based on the factors outlined above, Decision No. 534/90 held it would be reasonable to infer 
that the legislature intended to confer general Charter jurisdiction on the Tribunal. However, the 
panel found there was no jurisdiction to consider the Charter issue raised in this case, since the 
Tribunal did not have the jurisdiction to fashion a suitable remedy. 

While it was not necessary to decide this issue in light of the ruling on jurisdiction, the majority 
concluded that the Supreme Court decisions did not affect the interim decision's reasoning about 
the possibility of the Tribunal having a discretion to refuse to consider a Charter issue even where 
its jurisdiction to consider the issue was clear. The minority view was that where Charter 
jurisdiction existed, it was mandatory. 

Other Issues 

Other interesting legal and medical issues to come before the Tribunal include: the 
retroactivity of interest payments (Derisions No. 483/88A (July 2, 1992), 819/89 (July 10, 1992), 
/ 68/92 (1992), 22 W.C.A.TR. 279, and 109/91 (1992), 24 W.C.A.TR. 43); the effect of an altered gait 
in one leg on the other leg (Decision No. 67/92 (August 6, 1993)); the calculation of a second 
penalty after a long period of time with no penalty (Decisions No. 249/93 (1993), 27 W.C.A.TR. 
220, and 770/91 (1992), 22 W.C.A.TR. 219); and the collection and waiver of overpayments 
(Decisions No. 24F2 (1992), 22 W.C.A.TR. 1, 879/921 (January 8, 1993), 624/92 (1993), 25 
W.C.A.TR. 175, 118/93 (March 5, 1993), 34/9212 (1993), 27 W.C.A.TR. 105, 327/93 (June 7, 1993), 
and242/93(June7, 1993)). 

JUDICIAL REVIEW ACTIVITY 

In 1992, applications for judicial review were heard by the Divisional Court in Decisions No. 
977/89 (1990), 13 W.C.A.TR. 298, 155/90 (March 12, 1990) and 32/91 (1991), 18 W.C.A.TR. 258. 

All three applications were dismissed. 

The application for judicial review of Decision No. 801/88 (November 23, 1988) was dismissed 
for delay on December 29, 1992. 

In 1993, the Divisional Court heard applications for judicial review of the following nine 
Tribunal decisions: 

- Decision No. 497/90 (September 27, 1990), heard January 13, 1993; 

-- Decision No. 1030/89 (1991), 20 W.C.A.TR. 46, heard February 4, 1993; 

- Decisions No. 936/90 (January 30, 1991) and 936/90R (September 16, 1992), heard May 12, 1993; 
-- Decisions No. 927/89 (1992), 23 W.C.A.TR. 33, 287/90 (July 20, 1992), 288/90 (July 20, 1992) 

and 289/90 (July 20, 1992), heard together on June 3, 1993; 

- Decision No. 345/91 (March 18, 1992), heard September 27, 1993. 

All applications were dismissed. 



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Workers' Compensation Appeals Tribunal 
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The motion for leave to appeal to the Court of Appeal respecting the decision of the Divisional 
Court upholding the Tribunal's Decision No. 656/88 (December 9, 1988) was heard on May 3, 
1993, and a motion for leave to appeal to the Court of Appeal respecting Tribunal Decisions No. 
927/89, 287/90, 288/90 and 289/90 was heard on December 6, 1993. Both motions were 
dismissed. 

The application for judicial review of Decision No. 917/88 (August 11, 1989) was abandoned. 

At the end of 1993, five applications for judicial review of the following Tribunal decisions 
remained outstanding: 

-- Decision No. 824/90 (April 2, 1992); 

- Decision No. 716/91 (1993), 26 W.C.A.TR. 93; 

-- Decision No. 33/93 (April 20, 1993); 

-- Decision No. 385/93 (August 4, 1993); 

-- Decision No. 439/931 (July 13, 1993). 

There was, as well, an application for judicial review of a panel's preliminary rulings, made in 
appeal No. WCAT 93-0199. 

Other Matters 

On December 2, 1992, an injunction was granted by the Ontario Court (General Division) 
restraining an applicant from proceeding with a section 17 application before the Tribunal 
until the trial or other final disposition of the matter. The Tribunal was granted status as a 
friend of the Court and opposed the granting of the injunction on jurisdictional grounds. On 
February 4, 1993, leave to appeal from this decision was granted, and on June 9, 1993, the 
Divisional Court set aside the injunction. The decision to set aside is now subject to a motion 
for leave to appeal to the Court of Appeal. 



21 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Receipt of Appeal 
& Intake Processing 



Pre-Hearing Processing 



i 

Scheduling of Hearings 



Hearings 



I 



Post- Hearing Processing 



f 



Decision Writing 



Decision Release 



Records 



TCO 

Intake 

..QGMtM?.. 



TCO 

Tribunal Counsel 

Pre-Hearing Legal Workers 

MLO 

Intake 



Scheduling 



TCO 
Pre-Hearing Legal Workers 
Tribunal Counsel 



Panel 



Panel 



Scheduling 



TCO 
Pre-Hearing Legal Workers 
TObui^ Counsel 

Panel 

"""fco 

Post-Hearing Co-ordinators 
MLO 

Panel 



Counsel to 
Chair's Office 



Panel 



Information Department 



Special and Administrative Services 



• Systems Department 

• Finance and Administration 

• French Translation Services 

• Information Department (Library and Publications) 

• Human Resources 



• Reproduction and Mail Room 

• Secretarial Services 

• Statistical Services (Data Processing and Reports) 

• Word Processing Centre 



Figure 3 THE APPEAL PROCESS 



22- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



THE TRIBUNAL REPORT 

THE APPEAL PROCESS 

The appeal process used by the Tribunal has been represented graphically as a flow chart on 
the facing page (Figure 3, p. 22). The process from receipt to final disposition of a typical appeal 
is as follows. 

Appeals are logged in by Records and forwarded to Intake, the department responsible for 
obtaining the worker's file from the WCB and other necessary preliminary information. Once 
Intake's work is complete, it forwards the file to the Tribunal Counsel Office where the case is 
prepared for hearing. The main vehicle in this regard is the Case Description (CD) which 
provides an indexed copy of all relevant documents from the WCB file and it may include a 
summary of the facts and identify the issues. Upon completion, the CD is forwarded to the WCB 
and to the worker and employer, or their representatives, who are free to request deletions, 
additions or amendments. 

(The worker's consent to the employer having access to documents in his or her file is sought at 
the initial stages of an appeal. If the consent is withheld, the processing of the appeal is put on 
hold while the issue of the employer's right of access to relevant documents is decided by a 
Tribunal panel. This is done in a special panel process). 

At the same time, the CD is sent to the Tribunal's Medical Liaison Office (MLO), to the Tribunal 
counsel assigned to assist with the case and to the Scheduling Department. A hearing date is set 
by the Scheduling Department if it was not previously set when the CD was sent to the parties. 
The MLO identifies medical issues in the case and checks the medical evidence available in the 
file and consults where necessary with the Tribunal's Medical Counsellors as to significant 
omissions or deficiencies. Problems with the medical evidence are addressed by further 
investigating, perhaps through seeking further information or clarification from doctors whose 
reports are to be found in the WCB file or by seeking additional advice or opinions from doctors 
on the Tribunal's roster of Order-in-Council appointed medical assessors. If this activity cannot 
be completed before the hearing date, the problem is brought to the attention of the hearing panel 
at the hearing and the panel may direct post-hearing completion of such further investigation. 

A hearing panel may, in any event, in the course of the hearing and decision-making process, 
identify for itself a need for further medical or other investigation. Where that happens, it will 
instruct the Tribunal Counsel Office to co-ordinate and direct that investigation, post-hearing. 

The results of any Tribunal investigations, whether post-hearing or pre-hearing, are shared 
with the parties, who are entitled to make submissions in respect of them. 

It is usual for panels to rely on written medical reports as sufficient indication of a doctor's 
evidence. However, where a report requires clarification or explanation, and the panel decides a 
written clarification is not sufficient, the report's author may be required to testify and questioned 
about the report. 

The Tribunal counsel investigates the law relating to an appeal and, where necessary, provides 
the hearing panel, and the parties, with copies of especially significant previous decisions of the 
Tribunal or of other authorities. He or she also assists with any need for further clarification of 
the issues likely to be addressed by a hearing panel and provides information to both parties' 
representatives concerning the probable issue-agenda and the Tribunal's hearing process. 



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Workers' Compensation Appeals Tribunal 
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All evidence including the CD must be filed and distributed to the parties three weeks before 
the hearing. 

The CD, any additions to the CD requested by the parties, and any product of the pre-hearing 
work of the MLO or the Tribunal counsel is delivered to each member of the tripartite hearing 
panel a few days before the hearing date and is read by them in advance of the hearing. 

At the hearing, any participating party is entitled to submit such further documentary evidence 
as he or she considers necessary and to have any witnesses testify. This is subject to the 
obligation to give the other party and the Tribunal three weeks advance notice of such evidence. 
Witnesses may be cross-questioned by the other party and by any member of the hearing panel. It 
is usual for at least the worker to testify. 

Once all the evidence has been presented, submissions on the evidence and law are made and 
the hearing is then considered complete. The hearing is, however, always subject to being 
reconvened on the initiative of the hearing panel if the panel concludes that additional evidence 
or further submissions are needed. 

After the hearing, the decision is made through a process involving panel caucuses, drafting 
reasons, reviewing draft reasons, re-drafting, further caucuses, etc. The drafting of reasons is the 
responsibility of the panel chair but all three members of the hearing panel participate fully in the 
decision-making process. The panel may submit the decision to the Tribunal's draft review 
process. 

After the decision is released, the Tribunal may receive a request for reconsideration, or be 
asked to respond to a complaint to the Ombudsman's Office, or the decision may become the 
subject of judicial review. 

VICE-CHAIRS, MEMBERS AND STAFF 

Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors active during the 
reporting period, as well as a record of the roster changes and resumes for newly appointed 
Vice-Chairs and Members, can be found in Appendix B. 

TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of six groups, each reporting to the General 
Counsel. 

Intake 

The Intake Department handles all incoming appeal applications and the public's questions 
about appeals and about the appeal process. The Intake Department has been primarily 
responsible for all the Tribunal's "special section" cases. The special section cases include 
section 71 access to worker file cases, section 23 employer requests for medical examination and 
section 17 cases on the right to maintain civil actions for damages. 

However, the Intake Department is not responsible for rehabilitation or re-employment issues 
under sections 53 and 54 of the Act. These special section cases are handled by a senior TCO 
lawyer. 



24 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



The legal aspects of Intake work are carried out under the review of TCO lawyers. Special 
section cases constitute approximately 32 per cent of the Tribunal's incoming cases and often 
involve complex legal issues. 

The Intake Department is headed by the Intake Manager. 

Case Description Writers 

Case Description Writers are responsible for preparing all cases for hearing according to a 
standardized model and within certain time limits. 

The Case Description group works under the supervision of a senior TCO lawyer. 

Pre-hearing Legal Workers 

When the case description is complete, the case is scheduled and transferred either to a legal 
worker or to a lawyer. Approximately 90 per cent of cases are handled by legal workers. These 
legal workers deal with matters that arise pre-hearing and provide assistance to the parties if 
there are questions respecting the preparation of the cases. 

Lawyers 

Lawyers handle a small number of the most complex cases, involving novel legal issues or 
issues which have been identified as involving a significant Tribunal interest. 

At the request of the hearing panel, lawyers may attend hearings to cross-question witnesses or 
may provide the panel with evidence, usually in the form of expert evidence from one of the 
Tribunal's medical assessors. The purpose of these functions is to ensure that there is an 
adequate record before the panel. Lawyers may also make submissions on matters of law either 
by way of written submissions or orally at the hearing, when this is requested by the hearing 
panel. However, TCO lawyers do not make submissions on issues of fact and all submissions are 
presented in as neutral a manner as possible. 

Lawyers also provide assistance to legal workers and supervise many of the functions carried 
out by legal workers. 

In both 1992 and 1993, there were five lawyers in TCO, exclusive of the General Counsel, as 
well as one articling student. Major issues which required lawyer input continued to include 
questions of legislative interpretation in re-employment appeals and issues related to stress 
claims. 

TCO lawyers also handle applications for judicial review and other court related matters. 

Post-hearing Legal Workers 

When the panel identifies that additional information is required after a hearing, a request is 
made to the post-hearing legal workers, who coordinate this continuing investigation. The 
post-hearing legal workers are headed by the Senior Legal Worker, Post Hearing. 



25- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Medical Liaison Office 

The Medical Liaison Office (MLO) co-ordinates and oversees all of the Tribunal's interactions 
with the Medical Community and facilitates the Tribunal's use and understanding of medical 
evidence. 

Because the Tribunal has an interest in ensuring that hearing panels have sufficient and 
appropriate medical evidence on which to base decisions, all case descriptions are reviewed by 
the MLO for the purpose of identifying those cases in which the medical issues may be 
problematic, complex or novel to the Tribunal. Those cases selected from this process are 
referred to the Tribunal's Medical Counsellors to be sure that the medical assessment of the 
worker's injury is complete, that the record contains opinions from appropriate experts when 
required and that questions or concerns about the medical issues that may need clarification for 
the hearing panel are identified. 

At the pre-hearing stage, counsellors may recommend getting more information from the 
patient's attending physician(s). In addition, counsellors may recommend Medical Assessor 
opinion if the diagnosis of the worker's condition is unclear, or if there is a complex medical 
problem that needs explanation, or if there is an obvious difference of opinion between qualified 
experts. 

At the post-hearing stage, panels requesting further medical investigation, may reqii'^t the 
assistance of the MLO in preparing specific questions that may be helpful in resolving nn lual 
issues that are troubling to the panel. Counsellors assist MLO in providing additional questions 
for the hearing panel's consideration. 

In addition to case specific medical evidence issues, the MLO co-ordinates the Tribunal's 
medical audit of decisions for the purpose of obtaining from the Medical Counsellors a medical 
professional's perspective on the manner in which medical facts or theory are treated or recorded 
in Tribunal decisions. The audit permits the Tribunal to evaluate its processes and practices as 
they relate to medical issues and medical evidence, and to further educate Tribunal members and 
staff through medical education initiatives. 

MLO continues to place in the WCAT Library, medical reports and transcripts of WCAT experts 
on medical/scientific issues that contain information that may be useful in future appeals. These 
reports and transcripts have been anonymized and literature cited in reports has been placed in 
the Tribunal's vertical file. This collection of medical reports specific to issues that arise in the 
workers' compensation field is unique within the Ontario WC system and is accessible to the 
public. Discussion papers on general medical topics that frequently arise in compensation 
matters prepared by the Tribunal's Medical Counsellors or Medical Assessors are also available in 
the Library. 

The above material was identified by the Occupational Disease Task Force (appointed by the 
Ontario Minister of Labour in 1991 to investigate research and information resources respecting 
occupational diseases) as a significant component of the Province's resources for gathering and 
disseminating information and research respecting occupational diseases. 

Database 

In 1993, the MLO began to use a database designed by the Chief Information Officer to help 
track the nature of medical issues at the Tribunal, the type of investigations conducted by the 
office, decisions using this evidence, and which assessors provided expert evidence to the 
Tribunal. The database can be searched by WCAT number, decision number, medical issue, and 



- 26- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



assessor or counsellor, and will help the MLO analyze the nature and extent of its workload and of 
the medical investigations conducted by the Tribunal. It is also expected that the database will 
give us a clearer idea of what information exists within the Tribunal that may be useful in appeals 
with similar medical fact situations. 

Medical Counsellors 

One of the Tribunal's original Medical Counsellors, Dr. Tom Morley, (neurosurgeon) resigned at 
the end of 1992. Dr. Morley contributed significantly to the Tribunal's growth and development in 
respect of medical matters. Particularly noteworthy, is a paper he wrote entitled "Legal and 
Medical Attitudes — Aspects of Causation", published by the Tribunal in the Compensation 
Appeals Forum, Volume 4, No. 1, 1989. This document is part of the training material provided to 
new panel members. 

Replacing Dr. Morley since January 1993, has been Dr. Ross Fleming, previously a WCAT 
Assessor. Dr. Fleming is an experienced neurosurgeon, who, for nearly twenty years was Head, 
Division of Neurosurgery at Toronto Western Hospital. He is currently a professor in the 
Department of Surgery, University of Toronto, and has served on the executive of many 
distinguished professional societies, nationally and internationally. 

Medical Assessors 

The Tribunal continues to retain and attract to its Medical Assessor roster many of the 
Province's most distinguished medical experts. A concerted effort has been made to recruit 
qualified female physicians and doctors with diverse cultural and language backgrounds. 

INFORMATION DEPARTMENT 

Library Activities 

Acquisitions and Database Growth 

Acquisitions (that is, documents added to the library) have traditionally been used as a method 
for indicating the growth or stability of a library's collection. While these figures continue to 
provide useful information about the physical size of the library, another indication of library 
activity is database growth. The following figures reflect both indicators. Database growth 
indicates not only documents acquired, but also access points created to those documents. 

During the reporting period, 498 books and government documents were added to the 
collection, 215 entries were added to the Juris database (case name index of judicial decisions) 
and 2,844 entries were added to the Library database (periodical and vertical file index). Nine 
hundred and twenty-one documents were acquired through interlibrary loan. 

Subscriptions 

Serials and looseleaf textbooks were evaluated with a view to cancelling less essential titles. 
Sixteen serial titles and seven looseleaf services were cancelled during the year. 

An examination of the looseleaf textbooks revealed that it is more cost effective to replace the 
entire book every two or three years rather that keep it constantly up to date. In future only 
critical titles will be kept up to date with the looseleaf service. A review of these titles will be 
carried out annually. 



27- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Reference and Information Services 

Demand for these services continues to rise. The introduction of the DDS On Disk service in 
January 1993 has led to a decline in requests from out of town for online searches of WCAT 
Decision Summaries. Nevertheless we answered more queries in 1993 than 1992. In 1992 (the 
first year we kept consistent records of the number of inquiries), 910 reference questions were 
answered and assistance given with 687 directional inquiries. For 1993, the figures were 1,064 
and 757. Reference questions range from staightforward searches in one of the library's databases 
which may be accomplished in a short time to complex research projects involving manual and 
database searching of our own resources and in external databases and library collections. 
Directional inquiries involve directing a client to document locations and providing information 
regarding library resources and services. 

External clients continue to form a significant part of our clientele both in person and on the 
telephone. 

Book Selection 

Books and other documents are now selected by committee with input from the librarians 
providing reference services. 

Online Catalogue 

Library staff made use of the computer records for the Library's book collection located on an 
external bibliographic utility, Utlas. The records were downloaded from Utlas and read into a 
database on the Library's in-house system, Cardbox-Plus. The book collection can now be 
searched in the Cardbox-Plus "Books" files in the Library. The in-house system has proved to be a 
cost saving alternative allowing for streamlined cataloguing procedures and providing the 
flexibility and currency offorded by an online public access catalogue. 

Improved Database Access 

The Library maintains and provides access to several Tribunal databases, including summaries 
of the Tribunal's decisions and an index to the Library's vertical files. These databases are 
accessible to both WCAT staff and the public. 

A series of manuals were written to provide Cardbox Plus users with detailed instruction in 
searching each of the Library's in-house databases. Other user documentation includes a more 
general user guide and a manual aimed specifically at DDS On Disk users. (Please see note under 
Publications Department for a description of the new DDS On Disk service) 

Other steps taken to make the Library's databases more "user-friendly" included designing 
simpler display screens, adding an introductory screen explaining the content of each database 
and allowing for switching between databases at the touch of a computer key. 

Publications 

DDS On Disk 

A database containing summaries of the Tribunal's decisions has been available for public 
research in the Tribunal's Library for several years. The DDS On Disk service was introduced to 
make this database available to subscribers to perform searches on their own premises. 
Subscribers will be able to search the database by keywords, decision number, release date, panel 
members or materials considered by the decision. As the service is provided on disks (updated 



28- 






Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



monthly) there are no on-line charges. The DDS On Disk became available to subscribers early in 
1993. 

WCAT Online 

WCAT Online continues to be available to subscribers as a full-text database, but it will be 
transferred from Southam Electronic Publishing's Private File Service to Infomarl Online, early 
in 1994. Southam will be assuming the costs of storing and maintaining the database, which 
previously were paid by the Tribunal. Users will benefit from the superior search and display 
capabilities of Infomart's search software. Subscribers to Infomarl will have access to several 
legal, news and business-oriented databases, as well as to WCAT Online. 

Project to Improve Research Services 

The Tribunal's print and electronic research services rely on keyword terms as the main access 
point to the Tribunal's decisions. In March 1988, an improved set of keyword terms was 
introduced for the classification of issues arising in subsequent Tribunal decisions. As the prior 
decisions (approximately 2,000) remained keyworded with the original set of terms, researchers 
have since had to search two sets of keyword terms when researching Tribunal decisions. 

A project has been completed which re-keyword all of the decisions that were classified with 
the original keyword terms, replacing them with the new keyword terms introduced in March 
1988. A single set of keywords will greatly simplify the research process. Also, some older 
decisions had been keyworded, but were not summarized. A summary is now provided for every 
decision released by the Tribunal. 

These improvements have already been introduced into the databases (DDS On Disk and 
WCAT Online). They will appear in the Decision Digest Sendee over the next year. 

W.CAT. Reporter 

The W.C.A.T. Reporter contains the full text and headnotes of selected Tribunal decisions 
which cover a broad range of compensation issues. The Reporter has been published by the 
Tribunal in conjunction with Carswell. Beginning in 1994, the Tribunal will be publishing the 
Reporter on its own. With the Publications Department assuming this extra workload, the 
Tribunal will realize substantial savings. 

Decision Digest Service (DDS) 

Several adjustments were required to the DDS binders as a result of the renumbering of the 
Workers' Compensation Act that resulted from the introduction of the Revised Statutes of 
Ontario, 1990. 

1. All keyword terms that used to contain a reference to a section number of the Act have been 
revised so as to identify the relevant issue by subject matter, rather than by section number. For 
example, the keyword term "Section 15 application" has been replaced by "Right to sue". 

2. The section headings of the Act found in the consolidated Annotated Statute (1985 - April 26, 
1991) continue to be based on the R.S.O. 1980 numbering of the Act while the section headings 
of the Act found in the cumulating ^4 nno ta ted Statute segment of the Cumulative Index binder 
use the R.S.O. 1990 numbering of the Act. 

3. The Section 15 Index has been renamed the Section 17 Index to reflect the change in the 
numbering. 



29- 



Workers' Compensation Appeals Tribunal 
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Practice Directions 

The Tribunal's practice directions have also been revised to reflect the renumbering of the 
sections of the Act brought about by the R.S.O. 1990. Those practice directions which had a 
section of the Act as part of their title, were renamed. 

Leaflet 

The leaflet was first introduced in 1992. It is a plain language introduction to the Tribunal 
entitled This Is the Workers' Compensation Appeals Tribunal. The leaflet has decreased our 
reliance on the pamphlet, A Straightforward Guide to the Workers' Compensation Appeals 
Tribunal, which is a more expensive publication and contains more detailed information than is 
necessary for a general introduction to the Tribunal. 

Depository Library Programme 

The W.C.A.T Reporter and the Decision Digest Service binders were made available, at no 
charge, to all full depository libraries in the Ontario Government's depository library programme. 
As these libraries are located throughout Ontario, accessibility to the Tribunal's decisions for 
researchers who are unable to use the Tribunal Library in Toronto has been much improved. 

Photocopy Service 

Copies of the Tribunal's decisions are available through its Photocopy Service. A 
premium-priced Rush Service was added to the Standard Service. 

Compensation Appeals Forum 

The Compensation Appeals Forum was discontinued due to a lack of interest in submitting 
original contributions. 

SYSTEMS DEPARTMENT 
New Computer System 

During the first half of 1992, the testing and evaluation of the Tribunal's new computer system 
was completed and the system was accepted. This project started with Management Board of 
Cabinet's approval of a business case prepared by the Tribunal in 1991. The business case called 
for the replacement of the organization's aging computer system to correct a serious overload 
situation that existed and to provide adequate computer resources for future application 
enhancements. 

Case Tracking 

During 1991, a dBASE-based Case Tracking system was developed, using the Tribunal's 
minicomputer as the PC network server. Early in 1992, the new application was introduced 
throughout the Tribunal, by means of small training seminars conducted by the staff of the 
Statistics and Research Department. The successful start-up of this end-user application has led 
to faster and easier delivery of statistical information about cases and caseload. 



30- 



Workers' Compensation Appeals Tribunal 
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Once the Case Tracking application was in use by all departments, focus group sessions were 
organized to provide users with an opportunity to identify additional requirements and to assess 
its acceptance as a productivity tool. Meetings began in November 1992 and examined four basic 
questions: 1) How do departments use the system? 2) What are the incentives for using the 
system? 3) What discourages the use of the system? 4) What further enhancements can be made 
to the system? 

Slow response times were identified by users as a major shortcoming. It was determined that 
this was caused by the large size of the database and a project was begun to create an archiving 
capability. 

The primary database now accessed is comprised of open cases. Closed cases are archived into 
two separate databases. The first database contains recently closed case histories. This 
information resides on the Tribunal main computer and can be viewed on-screen and included 
along with active case information when generating reports. Cases closed for more than two 
years are transferred to the second database. This database is maintained off-line and if retrieval 
of a case is necessary it is accessed overnight using a special automated routine. 

Since active cases are accessed the most often, and comprise a relatively small portion of the 
overall data, satisfactory performance levels were reached by the end of 1992. Further 
refinements were carried out concurrent to the archive creation. These included the upgrading of 
the database software, the streamlining of the log-on procedure used to enter the system and the 
expansion of the hours during which the system can be used. 

Other PC Based Applications 

A PC-driven accounting package was installed in the Tribunal's Financial Department. This 
replaced what had been a fully manual accounting process. As a result, financial statements and 
daily financial reports are quickly and easily generated, answers to questions concerning 
financial matters are provided sooner and detailed financial analysis can be made without having 
to consult cumbersome paper records. 

A multi-user, network version of the Tribunal's in-house database software Cardbox-Plus was 
mounted on the main computer system. This eliminates the time-consuming task of manually 
exchanging data between PCs, and makes easier the routine maintenance and backup of 
information. At present only the staff of the Library and Publications Department have access to 
this software. 

The Systems Department supported the Publications Department in the development of a 
distribution copy of the in-house Cardbox-Plus database of decisions summaries. Using a 
read-only version of Cardbox-Plus, this new service, DDS On Disk, was offered to subscribers in 
1993 and the subscriber list continues to grow. 

The Tribunal connected to the Ontario Government CORPAY payroll system. Use of HR 
TimeServer should begin during 1994. 

A microcomputer specialist was added to our staff in 1993 to support the growing number of 
PC applications in use at the Tribunal. 



31 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Information Technology Security Guidelines 

A document outlining security issues arising from the use of computers to create, process, 
store and disseminate information was developed and distributed to staff. The Information 
Technology Security Guidelines provides staff with information about how to protect the 
documents and data stored in their computers from destruction or inadvertent disclosure. This 
document reflects the concerns raised by the Freedom of Information and Protection of Privacy 
Act and the Ontario Government's Management Board of Cabinet Directive on Information 
Technology Security, both of which address issues of confidentiality, integrity and availability of 
information collected, stored and accessed using computers. The trend toward greater 
dependence on computer technology at the Tribunal gave this project particular importance and 
priority during 1992. The guidelines were distributed during seminars that all staff and OIC 
appointees were required to attend. 

Help Desk 

In recognition of the increasing reliance on computer applications, the Systems Department 
set up a Help Desk which is staffed by a member of the department. The aim of the Help Desk is to 
provide a faster response to routine, system-related problems encountered by Tribunal staff. 

Minicomputer Performance 

As applications were being implemented on the LAN utilizing the VAX Server, a noticeable and 
serious drop in performance for other VAX based applications was noticed. The problem was 
tracked to a conflict when running our two main applications simultaneously on the same 
processor. 

Discussions with our hardware and software service provider (Digital) are ongoing, but a 
separate, dedicated Microcomputer Server was installed and testing has begun to determine if 
this is the appropriate solution. 

Computerized Accommodations for Disabled Members 

To facilitate connection to our computer system by a blind OIC member, a subsystem was 
purchased and implemented. This system included a microcomputer with a voice synthesizer to 
verbally read information on the screen. In addition, a scanner was set up so that information 
available on hard copy only could be imaged and read out to the panel member. Finally, a Braille 
printer was added so that information could be printed for use by the panel member during 
hearings or in regular day-to-day work. 

To accommodate decision-writing by a Vice-Chair who is confined to a wheelchair and has very 
restricted arm and hand movement, a special system for connecting to the main computer system 
was devised. A microcomputer was installed that has a voice-activated system customized to the 
Vice-Chair's voice that will execute the normal commands in response to the Vice-Chair speaking 
the appropriate commands into a special microphone. 



32- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



STATISTICAL SUMMARY 

This statistical report represents a detailed summary of the Tribunal's recent production and 
case inventory trends. The summary begins with an accounting of the numbers and types of cases 
received by year. This is followed by a section providing the numbers and types of cases closed. A 
third section details the current caseload (the cumulative difference between cases received and 
cases closed). In the fourth section we discuss typical overall case completion times. The two key 
production measures, hearings and decisions, are then examined in detail. Hearings 
representation profiles are presented regionally for workers and for employers, and the decisions 
and hearings counts are tabulated. 

Cases Received 

The incoming caseload for 1993 increased markedly over the totals received in the three 
previous years (Figures 4 and 5, pp. 36 and 37). At 2,150, the 1993 total represented a 42 per cent 
increase against the 1990 figure, a 38 per cent increase against the 1991 figure and a 19 per cent 
increase against the total for 1992. 

Examining case types separately, we note that the total incoming caseload increase was driven 
by increases in most of the entitlement categories (pension and commutation, reinstatement, 
vocational rehabilitation, NEL/FEL, and general entitlement) as well as in the category defined by 
appeals initiated under section 71 of the Workers' Compensation Act (access cases). Despite the 
overall increasing trend, some categories experienced decreases, including leave cases 
(applications under section 94 of the Act), and medical exams (applications under section 23 of 
the Act). There has also been a gradual reduction in the number of post-decision cases 
(Ombudsman's investigations, judicial reviews and requests to reconsider earlier WCAT rulings). 

Cases Closed 

In 1993, the Tribunal closed 1,864 cases (Figure 6, p. 38). This number represented a 17 per cent 
increase over the total number of cases closed in 1990. (Against the 1991 total, the increase was 5 
per cent, and against the 1992 total, the increase was 12 per cent.) 

Entitlement-related cases (including benefits entitlements as well as employer assessments, 
reinstatement and vocational rehabilitation obligations, and cases that were ultimately deemed 
non-jurisdictional) represented 56 per cent of the cases closed in 1993, special section cases 
accounted for 38 per cent, and post-decisions for 6 per cent. 

Final decisions were issued in roughly half of the cases closed in 1992 and 1993 (Figure 7, p. 39). Of 
those closed without final decisions, most (33.8 per cent of all cases closed in 1992 and 1993) 
were withdrawn. Other dispositions included a finding that the Tribunal did not have jurisdiction 
(8.5 per cent of all cases closed in 1992 and 1993), case abandonments (2.9 per cent of all cases 
closed in the period) and case settlements (1 per cent of all cases closed in the period). 

The distribution for these dispositions varied by appeal type. For the main group 
(entitlement-related appeals), 59 per cent were disposed by final decision. (The remainder were 
withdrawn (20 per cent), deemed non-jurisdictional (15 per cent), or abandoned/other (6 per 
cent).) 



33- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Remaining Inventory 

The rising trend in the Tribunal's incoming caseload began in 1991. The increase for 1991 was 
relatively minor, and that year, the Tribunal closed 216 cases more than it opened. In 1992, the 
incoming caseload increased more sharply, but the Tribunal's production (case closings) did not 
keep pace. As a result, the inventory grew by 140 cases. In 1993, the incoming caseload rose to 
unprecedented levels, and although the production also rose to near peak levels, the inventory 
none the less expanded by another 286 cases. By December 31, 1993, the total inventory had 
climbed to 1,746 cases. (Refer to Figure 8, p. 39) 

This total inventory was divided into three groups: appeals active at the Tribunal, appeals 
inactive at the Tribunal and post-decision issue cases. Of the inactive appeals, 237 were at the 
preliminary intake stage (waiting for applications to be completed). Another 280 cases were 
inactive pending their hearing date. (These cases had been scheduled but could not proceed until 
the hearing date arrived.) Of the 1,123 active appeals, 37 were awaiting assignment to pre-hearing 
officers who would gather the facts of the case and prepare case descriptions. One hundred and 
forty-four were in the case description process and another 172 were at other pre-hearing stages. 
One hundred and ninety-five were in the scheduling workload. There were 575 cases at 
post-hearing stages, of which 291 were formally assigned for Tribunal follow-up in the post-hearing 
department. (Typically these cases were adjourned with panels requesting further medical 
evidence.) Two hundred and fifty-two cases were at decision-writing stages, and 32 were all but 
closed formally The remaining 106 cases in inventory related to post-decision issue requests, 
where the Tribunal was being asked to reconsider earlier rulings (60 cases), or where there was an 
Ombudsman's investigation (41) or judicial review application (5) underway (Figure 9, p. 40). 

Case Completion Times 

The overall median time required to close cases in 1993 was about 5.6 months (170 calendar 
days). Fifty-two per cent of the completed cases were resolved within six months and 23 per cent 
were completed between six and 12 months. Thus three-quarters were completed within a 
one-year time frame. Eleven per cent took between 12 and 18 months, and the remaining 13 per 
cent required more than 18 months. (Refer to Figure 10, p. 40) 

The relevant proportions of cases completed within these same time intervals in 1991 and 1992 
are also given in Figure 10. The 1993 figures compare very well against the earlier figures, and the 
favourable comparison arises in part because of an increase in the number of cases closed 
without the need for final decision. This is especially true for access cases. Careful examination 
of the medians reported in Figure 1 1 (p. 41) reveals somewhat increased processing times for the 
other appeal types (i.e., those which are more likely to proceed through to the final decision 
release stage). 

Hearings and Decisions 

Hearings 

In 1993, 1,120 cases went to hearing (or were assigned to Tribunal panels for deliberations). 
Some of these cases were heard (or assigned) more than once, resulting in a total of 1,239 
hearings. In order to achieve the 1,239 hearings, 1,580 scheduling dates had to be arranged. (On 
occasion, hearings have to rescheduled due to illnesses or other unavoidable conflicts.) (Refer to 
Figure 12, p. 41) 



34 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Formal oral hearings accounted for 82 per cent of the hearings in 1993. Another 10 per cent of 
hearings were accounted for by panel reviews of written submissions and other panel caucuses, 
and the remaining 8 per cent were accounted for by panel deliberations regarding requests to 
reconsider previous Tribunal decisions. 

The Tribunal's formal hearings involve a tripartite WCAT panel (with a Vice-Chair and a 
Member Representative of Employers and a Member Representative of Workers) and parties are 
usually also accompanied by representatives. 

Representation at Hearings 

At approximately 7 per cent of the formal hearings in the 1992-93 period, employers did not 
appear. When they did appear, their representation broke down as follows: lawyers 35 per cent of 
the time, consultants 20 per cent, company personnel 19 per cent, Office of the Employer Adviser 
1 1 per cent and other types 8 per cent. 

The Office of the Worker Adviser (OWA) was the most common type of worker representative. 
The OWA represented workers at 29 per cent of the hearings. Unions accounted for worker 
representation 18 per cent of the time and lawyers or other legal assistants 13 per cent. 
Consultants accounted for the representation 7 per cent of the time and other types combined for 
16 per cent. Workers were unrepresented at the remaining 17 per cent of hearings. 

When the figures are examined by region as in Figure 13 (p. 42), we note some interesting 
differences. We note, for example, that in the Northern region, the OWA acted as a representative 
for workers in approximately 55 per cent of the cases, but it had only a 25 per cent share of the 
worker representation in the Southern region. Unions represented workers 31 per cent of the 
time in the Southern region, compared with only 1 1 per cent in the Eastern region. For employer 
representation, we note the strong representation by company personnel in the Northern region. 

Decisions 

In 1993, there were 839 cases closed by decision. This represents a decrease from the 1992 
total. (Nine hundred and twenty cases were closed by decision in 1992.) Some of these cases 
involved more than one decision, (occasionally interim issues had first to be resolved) and in 1993 
the total number of decisions reached 907. (Tins also represents a decrease from the 1992 figures. 
In 1992, there were 1,074 decisions issued.) The breakdown by appeal type is given in Figure 12 
(p. 41) and by decision type in Figure 14 (p. 42). Most of the decisions (778 in 1993) represented 
final rulings (720 final appeal rulings in 1993 and 58 final rulings on reconsideration matters in 
1993) however, there were 129 interim decisions in 1993 as well (123 interim rulings on appeal 
matters, and six interim rulings on reconsideration matters). Note that interim rulings were more 
common in 1993 compared with 1992. 

FINANCIAL MATTERS 

Statements of expenditures with variance reports for the years ended December 31, 1992, and 
December 31, 1993, are included in this report (Figures 15 and 16, p. 43). 

The accounting firm of Deloitte & Touche has completed a financial audit on the Tribunal's 
financial statements for the periods ending December 31, 1991, and December 31, 1992. The audit 
reports are included in this report as Appendix C. The audit on the financial statements for the 
period ending December 31, 1993, is not yet available. 



- 35- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



TYPE 



1990 
No. (%) 



1991 
No. (%) 



1992 
No. (%] 



1993 

No. {%} 



TOTAL**** 

(All Years) 

No. {%} 



Leave 44 3 31 2 35 2 12 1 723 5 

Right to Sue 121 8 127 8 124 7 113 5 918 6 

Medical Exam 52 3 65 4 76 4 49 2 531 4 

Access 288 19 318 20 370 21 509 24 2569 U 

Special Section subtotal 505 33 541 35 605 34 683 32 4741 31 



Pension 21 1 2 58 3 75 3 703 

N.E.L./F.E.L * n/a n/a 3 7 10 

Commutation 16 1 6 26 1 30 1 179 

Employer Assessment 26 2 6 25 1 23 1 196 

Entitlement 746 49 788 51 816 45 854 40 7198 

Reinstatement 10 31 2 39 2 46 2 117 

Vocational Rehabitation * * n/a n/a 10 19 1 60 3 80 

No Jurisdiction 31 2 31 2 101 6 59 3 610 

Preliminary (no type) *** n/a n/a n/a n/a n/a n/a 191 9 191 

Entitlement subtotal 841 55 865 55 1087 60 1345 63 9284 



48 



Judicial Review 


10 


1 


4 





7 





9 





45 





Ombudsman 


82 


5 


65 


4 


44 


2 


50 


2 


504 


3 


Reconsideration 


81 


5 


85 


5 


61 


3 


63 


3 


541 


4 


Clarification 


























4 





Post-decision subtotal 


173 


11 


154 


10 


112 


6 


122 


6 


1094 


7 


TOTAL INCOMING 


1519 




1560 




1804 




2150 




15119 





Note: This category represents appeals related to the non-economic loss and future economic 

loss pension criteria introduced by Bill 162. 

Note: This category represents appeals related to the increased Vocational Rehabilitation 

requirements introduced by Bill 162. 

Note: This category represents cases which have yet to be classified by appeal type. 

Note: The TOTAL (All Years) category represents all cases, including those received prior to 

January 1, 1990. 

Figure 4 - INCOMING CASES 



36- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



POST-DECISION ISSUE 6% 




SPECIAL SECTION 32% 



ENTITLEMENT 62% 

Post-decision issues include reconsideration applications, 

Ombudsman's inquiries and judicial review cases. 

Entitlement includes other related issues and no-jurisdiction cases. 

Figure 5 INCOMING CASE LOAD BY TYPE 



37- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 
























TOTAL* 






1990 


1991 


1992 


1993 


(All Years) 


TYPE 


No. 


(%) 


No. 


(%) 


No. 


m 


No. 


(%) 


No. (%, 


I 


Leave 


56 


4 


55 


3 


29 


2 


31 


2 


711 


5 


Right to Sue 


118 


7 


108 


6 


113 


7 


101 


5 


799 


6 


Medical Exam 


46 


3 


66 


4 


70 


4 


54 


3 


514 


4 


Access 


309 


11 


313 


18 


389 


23 


521 


28 


2487 


19 


Special Section subtotal 


529 


33 


542 


31 


601 


36 


707 


38 


4511 


34 


Pension 


99 


6 


172 


10 


50 


3 


63 


3 


624 


5 


N.E.L/F.E.L * 


n/a 


n/a 








1 





3 





4 





Commutation 


29 


2 


10 


1 


10 


1 


26 


1 


154 


1 


Employer Assessment 


29 


2 


22 


1 


24 


1 


17 


1 


168 


1 


Entitlement 


684 


43 


792 


45 


729 


44 


801 


43 


6214 


46 


Reinstatement 








4 





31 


2 


32 


2 


67 


1 


No Jurisdiction 


34 


2 


38 


2 


89 


5 


72 


4 


610 


5 


Vocational Rehabilitation ** 














5 





25 


i 


30 





Entitlement subtotal 


875 


55 


1038 


58 


939 


56 


1039 


56 


7871 


59 


Judicial Review 


3 





8 





4 





15 


1 


40 





Ombudsman 


103 


6 


112 


6 


53 


3 


42 


2 


463 


3 


Reconsideration 


82 


5 


76 


4 


67 


4 


61 


3 


484 


4 


Clarification 


1 























4 





Post-decision subtotal 


189 


12 


196 


11 


124 


7 


118 


6 


991 


7 


TOTAL CLOSED 


1593 




1776 




1664 




1864 




13373 




* Note: This category represents appeals 


related to the non-economic loss and future economic loss 




pension criteria introducec 


I by Bill 162. 


















* * Note: This category represents appeals 


related to the increased Vocational Rehabilitation requirements 


introduced by Bill 162. 






















* * * Note: The TOTAL (All Years) represents all cases, including those closed prior to January 1 , 1 990. 





Figure 6 - CASES CLOSED 



38- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 




SETTLED 1 .0% 

ABANDONED 2.9% 
OTHER 4.7% 



NON JURISDICTIONAL 8.5% 



WITHDRAWN 33.8% 



Figure 7 DISPOSITION TYPE FOR CASES CLOSED 



3,000 



2,500 



2,000 



1,500 



1,000 



500 




1985 1986 1987 1988 1989 1990 1991 1992 1993 



RECEIVED CLOSED INVENTORY 

TOTAL TOTAL (Re maining Ca ses) 

i i 



Figure 8 INCOMING FILES AND FILES COMPLETED 



- 39- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



A) INACTIVE CASES 






Intake: Awaiting case information 


237 




Pre-hearing: Awaiting hearing date 


280 


517 


B) ACTIVE CASES 






Pre-hearing assignment 


37 




Case description writing 


144 




Pre-scheduling 


172 




Scheduling 


195 




Post-hearing 


291 




Decision writing in progress 


252 




File closing 


32 


1123 


C) POST-DECISION ISSUES 






Ombudsman review cases 


41 




Requests for reconsideration 


60 




Judicial review 


5 


106 


TOTAL AS AT DECEMBER 31, 1993 




1,746 



Figure 9 - STATUS OF OPEN CASES 









PERCENTAGE OF CASES COMPLETED 












Withir 


6 Months 6 to 12 Months 


12 to 18 Months 


More Than 18 Months 




1991 


1992 


1993 1991 


1992 


1993 


1991 


1992 


1993 


1991 


1992 


1993 


Right to Sue 


54 


38 


28 25 


38 


33 


14 


13 


20 


7 


11 


18 


Med Exam and Access 


78 


78 


93 18 


20 


6 


3 


1 


1 


1 


2 





Entitlement-related ' 


26 


31 


34 33 


33 


31 


19 


15 


17 


22 


21 


19 


Post-decision Issues 


39 


43 


44 32 


36 


32 


13 


10 


6 


16 


10 


18 


ALL CASES 


39 


45 


52 26 


30 


23 


13 


11 


11 


22 


14 


13 


* Note: The 'entitlement 


-related 


category refers to entitlement appeals, pension appeals, leave applications 


reinstatement appeals, 


employer assessment appeals and pension commutation issues. 















Figure 10 DISTRIBUTION OF COMPLETION TIMES 



- 40- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 





Closed 


Closed 


APPEAL TYPE 


in 1992 


in 1993 




(median) 


(median) 


Medical Exam and Access 


94 


48 


Right to Sue 


236 


293 


Entitlement-related 


264 


273 


Post-decision issues 


204 


189 


ALL CASES 


201 


170 



Figure 1 1 AGING ANALYSIS FOR ALL CASES CLOSED 







SCHEDULING 








CASES 


APPEAL TYPE 




DATES 


HEARINGS" 


CASES 


DECISIONS " 


DISPOSED BY 






ARRANGED 




HEARD 


ISSUED 


DECISION " 


1992 














Right to sue 




139 


91 


70 


68 


55 


Medical exam 




80 


39 


34 


29 


25 


Access 




136 


136 


133 


147 


142 


Leave to appeal 




25 


23 


23 


23 


17 


Entitlement/Other 




922 


847 


739 


737 


619 


Reconsideration 




95 


95 


77 


70 


62 


TOTAL 




1,397 


1,231 


1,076 


1,074 


920 


1993 














Right to sue 




136 


85 


72 


63 


63 


Medical exam 




49 


19 


19 


21 


17 


Access 




110 


93 


91 


83 


87 


Leave to appeal 




21 


21 


21 


21 


23 


Entitlement/Other 




1164 


921 


837 


655 


595 


Reconsideration 




100 


100 


80 


64 


54 


TOTAL 




1,580 


1,239 


1,120 


907 


839 


* Note: Hearings 


include oral hearings, written submissions and panel 


assignments for reconsideration requests. 


** Note: Decision types 


include Final, Interim and Reconsideration. 









Figure 12 HEARINGS AND DECISIONS 



41 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Type of Representation by Region 














Eastern 


Northern Southern 


Toronto 


TOTAL 




m 


{%) 


(%) 


(%) 


{%) 


EMPLOYER 












Company Personnel 


24 


42 


16 


18 


19 


Consultant 


5 


5 


28 


21 


20 


Lawyer 


48 


31 


21 


36 


35 


No Representation 


9 


4 


5 


7 


7 


Office of Employer Adviser 


9 


11 


18 


11 


11 


Other 


5 


7 


12 


7 


8 


TOTAL 


100 


100 


100 


100 


100 


WORKER 












Consultant 





1 


3 


8 


7 


Lawyer or legal aid/asst. 


22 


7 


13 


14 


13 


No Representation 


20 


8 


9 


20 


17 


Office of Worker Adviser 


29 


55 


25 


26 


29 


Other 


18 


11 


19 


16 


16 


Union 


11 


18 


31 


16 


18 


TOTAL 


100 


100 


100 


100 


100 


NOTE: The overall representation proportions are most similar to the Toronto proportions because 


most hearings were conducted 


there. The Eastern region is represented by WCAT hearings in 


Ottawa, the Northern reg 


on by Sai 


It Ste. Marie 


Sudbury, Timmins, 


and Thunder Bay hearings, and the Southern region by London and Windsor hearings. 









Figure 13 - HEARINGS REPRESENTATION PROFILE 





1992 


1993 


APPEAL ISSUES 






Interim 


100 


123 


Final 


904 


720 


Subtotal 


1,004 


843 


RECONSIDERATION ISSUES 






Interim 


10 


6 


Final 


60 


58 


Subtotal 


70 


64 


TOTAL 


1,074 


907 



Figure 14 - DECISIONS ISSUED 



42- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



WORKERS' COMPENSATION APPEALS TRIBUNAL 










1992 STATEMENT OF EXPENDITURES AND VARIANCE 










As at December 31, 1992 (in SOOO's) 












1992 


1992 


VARIANCE 


Salaries and Wages 


BUDGET 


ACTUAL 


$ 


% 


6,437 


6,445 


(7.0) 


(0.11) 


Employee Benefits 


929 


1,081.0 


(151.0) 


(1625) 


Transportation & Communication 


4830 


480 


3.0 


0.62 


Services 


2.9980 


2,6720 


327.0 


1091 


Supplies & Equipment 


325.0 


246 


79 


2431 


TOTAL OPERATING EXPENDITURES 


11,172.0 


10,924.0 


251.0 


2.25 


Capital Expenditures 


25 


120 


130 


52 00 


TOTAL EXPENDITURES 


11,197.0 


10,936.0 


264.0 


2.36 



Figure 15 STATEMENT OF EXPENDITURES WITH VARIANCE 



WORKERS' COMPENSATION APPEALS TRIBUNAL 










1993 STATEMENT OF EXPENDITURES AND VARIANCE 










As at December 31, 1993 (in $000's) 












1993 


1993 


VARIANCE 


Salaries and Wages 


BUDGET 


ACTUAL 


$ 


% 


6,566 


6.461.0 


105.0 


1 60 


Employee Benefits 


1,0180 


1.063 


(45.0) 


(4.42) 


Transportation & Communication 


506.0 


3540 


152.0 


30.04 


Services 


2,9470 


2,741 


2060 


699 


Supplies & Equipment 


295.0 


187.0 


108.0 


36 61 


TOTAL OPERATING EXPENDITURES 


11,332.0 


10,806.0 


526.0 


4 64 


Capital Expenditures 


1800 


120 


1680 


9333 


Social Contract Committment 


0.0 


2458 


(246 0) 


00 


TOTAL EXPENDITURES 


11,512.0 


11,064.0 


448.0 


3.89 



Figure 16 STATEMENT OF EXPENDITURES WITH VARIANCE 



43- 



Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



APPENDIX A 

GUIDELINES FOR REVIEW OF 
DRAFT DECISIONS 

1. The Tribunal has recognized from its inception that its decision draft review process must be 
fully respectful of Hearing Panels' independence and autonomy. 

2. The purpose of the Tribunal's decision draft review as described most recently in the 1990 
Annual Report (p. 6) is "maintenance of the general quality and consistency of the Tribunal's 
decisions and ... the continued coherence and usefulness of the Tribunal's developing 
jurisprudence". 

3. In Consolidated-Bat hurst and in Tremblay, the Supreme Court of Canada has confirmed that 
fostering the quality and reasonable consistency and coherency of decisions is a legitimate 
and important institutional role for tribunals. The Court specifically approved internal 
consultation processes designed to influence (but not to constrain) decision-makers on 
generic, legal and policy issues. It also explicitly recognized that the importance of 
adjudicative coherence amongst tribunal decisions is a criterion that is relevant for 
individual tribunal adjudicators." 

4. Decision draft review is one of the Tribunal's processes for fostering the quality — including 
especially the consistency and coherence — of its decisions. The review process is the 
responsibility of the Office of the Counsel to the Chair (OCC) which Office is comprised of 
the Counsel to the Chair and her associate counsel. The purpose of the review is to check 
draft decisions referred for review by panel members against the Tribunal's "Hallmarks of 
Decision Quality". These "Hallmarks" were adopted by the Tribunal in written form in 1989 in 
its "Statement of Mission, Goals and Commitments". A copy of the "Hallmarks" is attached to 
[the Members' Code of Professional Responsibility]. 

5. In accordance with the fundamental principle that the power to decide rests with the Hearing 
Panel, it is for the Hearing Panel or any of its members to request review of a draft decision. 
But in considering whether a draft decision ought to be referred for review, panel members 
will have in mind their responsibilities as adjudicators to ensure that their decisions comply 
reasonably with the Tribunal's Hallmarks of Quality, and, in particular: 

1) that their decisions are coherent relative to prior Tribunal decisions; 

2) that with respect to previous decisions dealing with like issues, their decisions are 
reasonably consistent (unless they are satisfied that such prior decisions can be 
distinguished on their facts or are wrong). 



Consolulaled-Bathurst Ltd. v. International Woodworker's of America Local2-69 ( 1990), 68 D.L.R. (4th) 524 at pp. 555, 
562-563, 567; and Tremblay v. Quebec (Commission des Affaires Sociales) (1992), 90 D.L.R. (4th) 609 at pp. 621-623, 624-625 

ConsoMated-Bathurst, per Gauthier, at p. 562: 

"A decision-maker may also be swayed by the opinion of the majority of his colleagures in the interst of adjudicative 
coherence since this is a relevant criterion to be taken into consideration even when the decision-maker is not bound by any 
stare decisis rule." 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



6. In deciding whether to request OCC review of a draft decision, panel members are requested 
to consider particularly the criteria set out in paragraph 10 of these Guidelines. However, any 
panel member may request review of any draft decision at any time. Where a panel member 
requests review of a draft minority or majority decision, it is helpful for counsel to have an 
opportunity to review both drafts. 

7. As an expert appeal body deciding difficult medical and legal issues, the Tribunal is 
concerned with providing training to its new members. As part of their training, new 
Vice-Chair appointees are required to write at least one mock decision and submit it to OCC 
for draft review. Once assigned to hearings, new Vice-Chairs are asked to consider the 
following guidelines in deciding whether to request draft review: 

a) New Vice-Chair appointees with no previous workers' compensation experience are 
encouraged to submit their first 20 entitlement cases; first five right-to-sue, access and 
medical examination decisions; and first two leave-to-appeal decisions. 

b) New Vice-Chair appointees with previous workers' compensation experience are 
encouraged to submit their first 10 entitlement decision; first three right-to-sue, access 
and medical examination decisions; and their first leave-to-appeal decision. 

8. Draft review during the orientation period for new Vice-Chairs is intended to assist new 
Vice-Chairs in the development of their workers' compensation knowledge, writing skills and 
understanding of the Tribunal's "Hallmarks of Decision Quality". 

9. Unless a panel member specifies draft review by a particular member of OCC, the review will 
be done by the first available counsel. Requests for review of a second draft will be referred 
to the counsel who reviewed the first draft, unless the person requesting review specifies 
otherwise. 

10. Review of a draft decision would seem particularly indicated where the decision: 

a) addresses a new development issue or an issue that is for other reasons of 
particular current, Tribunal-wide interest; 

b) may be expected because of its nature to lead to media attention, a judicial review 
application, an Ombudsman complaint, or a reconsideration request; 

c) departs from the approach previously taken in Tribunal decisions; 

d) affects Board policy or practice; or 

e) involves a dissent on a significant issue. 

11. From time to time, the Chair or Counsel to the Chair may identify certain issues that in their 
view should be seen for purposes of the draft review process as currently of particular 
Tribunal-wide interest. 

12. Drafts referred for review will not be shared by OCC counsel with the Tribunal Chair or with 
any member of the Tribunal other than the referring member unless instructed by the 
member to the contrary. Counsel may, however, discuss drafts amongst themselves. 

13. On any generic issue of law or policy, any member of a hearing panel is welcome to consult at 
any time with any other member of the Tribunal, including with the Tribunal Chair. 

14. Counsel's comments regarding a draft decision will be forwarded to the panel member who 
requested draft review. It is the responsibility of that member to bring significant issues to 
the attention of the other members of the Hearing Panel. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



15. After reviewing a draft, OCC counsel may occasionally suggest that it would be helpful to 
review a second draft of the decision. The decision whether to request review of the second 
draft rests with the panel member who requested review of the first draft. 

16. OCC counsel are available to discuss any legal question with any panel member, or to provide 
research assistance, before or after a draft is written. 

17. Where, as a result of OCC draft review (or, indeed, for any reason), a Hearing Panel decides 
that it must address an issue or an authority that was not in view at the hearing, the Panel 
must consider whether natural justice requires that the parties to the case be given an 
opportunity to make further submissions, or to lead further evidence. 

18. OCC will meet regularly with the Tribunal Chair to review newly released decisions and to 
discuss issues and problems of current concern, generally. 

19. If, in the course of their work, OCC counsel encounter a draft decision that is pertinent to a 
generic issue or problem that they expect would be of special interest to the Tribunal Chair, 
they may advise the referring member of the Chair's likely interest. They shall not, however, 
mention that advice to the Tribunal Chair nor bring the draft to his or her attention in any 
other manner. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



APPENDIX B 



VICE-CHAIRS AND MEMBERS 
IN 1992-93 



Full-time 

Chair 

Ellis, S. Ronald 

Alternate Chair 

Kenny, Lila Maureen 
Onen, Zeynep 

Vice-Chairs 

Bigras, Jean Guy 
Cook, Brian 
Frazee, Catherine 
Kenny, Lila Maureen 
MeCombie, Nick 
Mclntosh-Janis, Faye 
Moore, John P. 
Newman, Elaine 
Onen, Zeynep 
Sandomirsky, Janice R. 
Signoroni, Antonio 
Strachan, Ian 

Members Representative of Workers 

Cook, Mary 
Crocker, Jim 
Heard, Lome (on leave) 
Jackson, Faith 
Lebert, Raymond J. 
Robillard, Maurice 
Shartal, Sarah 
Thompson, Patti 



Date of First Appointment 
as a Full-time Member 



October 1, 1985 



September 1, 1991 ' 
August 1, 1993 



May 14, 1986 
September 6, 1991 
November 1, 1992 
July 29, 1993 
January 22, 1991 
May 14, 1986 
July 16, 1986 
February 1, 1991 
October 1, 1988 2 
July 3, 1990 
October 1, 1985 
October 1, 1985 



November 1, 1990 
August 1, 1991 
October 1, 1985 
November 1, 1990 
June 1, 1988 
March 11, 1987 
November 14, 1990 
October 9, 1991 



1 Ms. Kenny retired as Alternate Chair on July 31, 1993. She retained her position as a Vice-Chair of the Tribunal and was 
re-appointed to that position effective July 29, 1993. 

2 Ms. Onen, a Tribunal Vice-Chair, was appointed as Alternate chair on August 1, 1993. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



Members Representative of Employers 

Apsey, Robert 
Barbeau, Pauline 
Chapman, Stanley 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry M. 
Preston, Kenneth 



December 11, 1985 
January 15, 1990 
July 16, 1990 
October 1, 1985 
August 1, 1988 
October 1, 1988 
October 1, 1985 



Part-time 

Vice-Chairs 

Faubert, Marsha 
Flanagan, Bill 
Harris, Dan 
Hartman, Ruth 
Marafioti, Victor 
McGrath, Joy 
Pfeiffer, Byron E. 
Robeson, Virginia 
Singh, Vara 
Stewart, Susan L. 
Sutherland, Sara 

Members Representative of Workers 

Beattie, David Bert 
Drennan, George 
Felice, Douglas H. 
Fenton, Julie 
Ferrari, Mary 
Fox, Sam 
Higson, Roy 
Klym, Peter 
Rao, Fortunato 

Members Representative of Employers 

Copeland, Susan 
Howes, Gerald 
Kowalishin, A. Teresa 
Robb, C. James 
Ronson, John 
Seguin, Jacques A. 
Shuel, Robert 



Date of First Appointment 



December 10, 1987 
June 1, 1991 
April 15, 1991 
December 11, 1985 
March 11, 1987 
December 10, 1987 
March 15, 1990 
March 15, 1990 
June 1, 1991 
May 14, 1986 
September 6, 1991 



December 11, 1985 
December 11, 1985 
May 14, 1986 
December 19, 1991 
May 14, 1986 
June 20, 1991 
December 11, 1985 
May 14, 1986 
February 11, 1988 



June 17, 1993 
August 1, 1989 
May 14, 1986 
June 2, 1993 
December 11, 1985 
July 1, 1986 
August 1, 1989 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



VICE-CHAIRS AND MEMBERS ~- RE-APPOINTMENTS 

In 1992-93, the following Vice-Chairs and Members were re-appointed to the Appeals Tribunal. 
All of the appointments were for three year terms. 



Full-time 

Vice-Chairs 

Bigras, Jean Guy 
Kenny, Lila Maureen 
McCombie, Nick 
Mclntosh-Janis, Faye 
Sandomirsky, Janice R. 

Members Representative of Workers 

Cook, Mary 
Jackson, Faith 
Robillard, Maurice 
Shartal, Sarah 

Members Representative of Employers 

Barbeau, Pauline 
Chapman, Stanley 
Jago, W. Douglas 
Nipshagen, Gerry M. 



Date of Re-appointment 



December 17, 1993 
July 29, 1993 
October 1, 1993 
May 14, 1992 
July 3, 1993 



November 1, 1993 
November 1, 1993 
March 10, 1993 
November 1, 1993 



January 15, 1993 
July 16, 1993 
October 1, 1993 
June 15, 1992 



Part-time 

Vice-Chairs 

Faubert, Marsha 
Marafioti, Victor 
McGrath, Joy 
Robeson, Virginia 
Stewart, Susan L. 

Members Representative of Workers 

Felice, Douglas H. 
Ferrari, Mary 
Higson, Roy 
Klym, Peter 

Members Representative of Employers 

Howes, Gerald 
Seguin, Jacques A. 
Shuel, Robert 



December 10, 1993 
March 10, 1993 
December 10, 1993 
March 14, 1993 
May 14, 1992 



May 14, 1992 
May 14 1992 
December 11, 1993 
May 14, 1992 



August 1, 1992 
July 1, 1992 
August 1, 1992 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



VICE-CHAIRS AND MEMBERS -- 

EXPIRED APPOINTMENTS AND RESIGNATIONS 

The following is a list of Order-in-Council appointments who resigned or whose appointments 
expired during 1992-93. 

Fox, Sam, Member Representative of Workers' (part-time) 

Kowalishin, A. Teresa, Member Representative of Employers (part-time) 

Pfeiffer, Byron P., Vice-Chair (part-time) 

Preston, Kenneth, Member Representative of Employers (full-time) 

NEW APPOINTMENTS DURING 1992-93 

Zeynep Onen 

(Alternate Chair) August 1, 1993 

The position of Alternate Chair involves both senior management and adjudicative functions. 
The Alternate Chair is effectively a partner with the Chair in the management of the Tribunal. She 
is also authorized to act in the Chair's place should he be absent from Ontario or otherwise unable 
to act. Ms. Onen was appointed as Alternate Chair effective August 1, 1993. Ms. Onen has been 
employed at the Tribunal since October 1985. She was first employed as a Tribunal counsel. 
From March 1986 to October 1988, she was senior legal counsel in the Tribunal Counsel Office. 
During this period, she also acted for a time as the Tribunal's General Counsel. She has been a 
full-time Vice-Chair since October 1, 1988. 

Susan Copeland 

(Part-time Member Representative of Employers) June 23, 1993 

Ms. Copeland, who recently retired from Ontario Hydro, has been involved in the supervision 
of workers' compensation claims since 1980. She was the organizer of a Schedule 2 employers' 
group and is a former vice-chair of the Municipal Users' Group. She has been active in organizing 
and presenting workers' compensation training seminars and has direct advocacy experience at 
the Workers' Compensation Board and at the Tribunal. 

Catherine Frazee 

(Full-time Vice-Chair) November 1, 1992 

Ms. Frazee is the former Chief Commissioner of the Ontario Human Rights Commission. She 
comes to the Tribunal with a background in law and writing. She is fluent in both English and 
French. 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



C. James (Jim) Robb 

(Part-time Member Representative of Employers) June 23, 1993 

Mr. Robb recently retired from Dofasco where he had been supervisor of workers' compensation 
since 1986. Until recently, he was chair of the Canadian Manufacturers' Association's Workers' 
Compensation Committee. He was also a member of the WCB Chairman's Task Force on Service 
Delivery and Vocational Rehabilitation, Hamilton Regional Advisory Group. 

SENIOR STAFF 

The following is a list of the senior staff who were employed at the Appeals Tribunal during the 
reporting period. 

Beverley Pavuls Chief Administration Officer 

Linda Moskovits Chief Information Officer 

Eleanor Smith Tribunal General Counsel 

Peter Taylor Chief Financial Officer 

Carole Trethewey Counsel to the Tribunal Chair 

MEDICAL COUNSELLORS 

The following is a list of the Tribunal's Medical Counsellors. 

Dr. Douglas R Bryce Otolaryngology 

Dr. Ross Fleming Neurosurgery 

Dr. Robert Harris Orthopaedic Surgery 

Dr. Frederick H. Lowy Psychiatry 

Dr. Robert L. MacMillan Internal Medicine 

Dr. John S. Speakman Ophthalmology 

Dr. Neil A. Watters General Surgery 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



APPENDIX C 

WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1991 

Auditors' Report 

To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of the Workers' Compensation Appeals Tribunal as at 
December 31, 1991 and the statements of expenditures and Workers' Compensation Board 
Funding for the year then ended. These financial statements are the responsibility of the 
Tribunal's management. Our responsibility is to express an opinion on these financial statements 
based on our audit. 

We conducted our audit in accordance with generally accepted auditing standards. Those 
standards require that we plan and perform an audit to obtain reasonable assurance whether the 
financial statements are free of material misstatement. An audit includes examining, on a test 
basis, evidence supporting the amounts and disclosures in the financial statements. An audit also 
includes assessing the accounting principles used and significant estimates made by 
management, as well as evaluating the overall financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, the financial 
position of the Tribunal as at December 31, 1991 and the results of its operations and Workers' 
Compensation Board Funding for the year then ended in accordance with the accounting policies 
described in Note 2 of the financial statements. 



Deloitte &Touche 
Chartered Accountants 
Toronto, Ontario 
July 8, 1992 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



BALANCE SHEET 
December 31, 1991 

ASSETS 

Cash in bank 

Receivable from Workers' Compensation Board 

Salary and wages recoverable 

Accounts receivable 



1991 


1990 


411,900 


$ 616,000 


1,739,500 


1,511,500 


35,800 


23,600 


13.000 


8.300 



$ 2.200.200 $2.159.400 



LIABILITIES 

Accounts payable and accrued liabilities $ 800,200 $ 759,400 

Operating advance from Workers' Compensation Board 1.400,000 1,400.000 

$ 2.200.200 $2.159.400 

Approved on Behalf of the Workers' Compensation Appeals Tribunal 
S.R. Ellis, Chairman 



STATEMENT OF EXPENDITURES 
Year Ended December 31, 1991 

Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Total operating expenditures 10,754,700 9,396,300 

Capital expenditures 7.400 53.200 

Total expenditures $ 10.762.100 $ 9.449.500 



1991 


1990 


$ 6,212,600 


$ 5,400,500 


915,100 


760,600 


466,600 


423,600 


2,767,700 


2,542,900 


392.700 


268.700 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



STATEMENT OF WORKERS' COMPENSATION 

BOARD FUNDING 

Year Ended December 31, 1991 

1991 1990 

Recoverable expenditures $ 10,762,100 $9,449,500 

Reimbursement from Workers' Compensation Board 10.534.100 10.198.400 

Change in receivable from Workers' Compensation Board 228,000 (748,900) 

Receivable from Workers' Compensation Board, 

beginning of year 1.511.500 2.260.400 

Receivable from Workers' Compensation Board, 

end of year $ 1.739.500 $ 1.511.500 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1991 

1. General 

The Tribunal was created by the Workers' Compensation Amendment Act, S.O. 1984, 
Chapter 58 - Section 32, which came into force on October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers from decisions, orders or rulings of the 
Workers' Compensation Board ("WCB"), and any matters or issues expressly conferred upon the 
Tribunal by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles except for capital expenditures which are charged to expense in the year of 
acquisition. 

3. Commitments 

The Tribunal has commitments under an operating lease requiring minimum annual lease 
payments as follows: 

1992 $ 780,960 

1993 780,960 

1994 780,960 

1995 780,960 

1996 260.320 

$ 3.384.160 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



WORKERS' COMPENSATION APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1992 

Auditors' Report 

To the Workers' Compensation Appeals Tribunal 

We have audited the balance sheet of the Workers' Compensation Appeals Tribunal as at 
December 31, 1992 and the statements of expenditures and Workers' Compensation Board 
funding for the year then ended. These financial statements are the responsibility of the 
Tribunal's management. Our responsibility is to express an opinion on these financial statements 
based on our audit. 

We conducted our audit in accordance with generally accepted auditing standards. Those 
standards require that we plan and perform an audit to obtain reasonable assurance whether the 
financial statements are free of material misstatement. An audit includes examining, on a test 
basis, evidence supporting the amounts and disclosures in the financial statements. An audit also 
includes assessing the accounting principles used and significant estimates made by 
management, as well as evaluating the overall financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, the financial 
position of the Workers' Compensation Appeals Tribunal as at December 31, 1992 and the results 
of its operations and Workers' Compensation Board funding for the year then ended in 
accordance with the accounting policies described in Note 2 of the financial statements. 



Deloitte &Touche 
Chartered Accountants 
Toronto, Ontario 
December 30, 1993 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



BALANCE SHEET 
December 31, 1992 



ASSETS 


1992 


1991 


Cash 


$ 210,600 


$ 411,900 


Receivable from Workers' Compensation Board 


1,550,200 


1,739,500 


Salary and wages recoverable (Note 3) 


13,600 


35,800 


Advances 


14.500 


13.000 



LIABILITIES 

Accounts payable and accrued liabilities 

Operating advance from 

Workers' Compensation Board (Note 4) 



Approved on Behalf of the Workers' Compensation Appeals Tribunal 
S.R. Ellis, Chairman 



$ 1.788.900 


$ 2.200.200 


$ 388,900 


$ 800,200 


1.400.000 


1.400.000 


$ 1.788.900 


$ 2,200.200 



STATEMENT OF EXPENDITURES 
Year Ended December 31, 1992 

Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 

Total operating expenditures 

Capital expenditures 

Total expenditures 



1992 


1991 


$ 6,444,500 


$6,212,600 


$ 1,080,200 


915,100 


479,800 


466,600 


2,671,400 


2,767,700 


245.900 


392.700 


10,921,800 


10,754,700 


12.100 


7.400 


$ 10,933,900 


$ 10.762,100 



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Workers' Compensation Appeals Tribunal 
Annual Report 1992 and 1993 



1992 


1991 


$ 10,933,900 


$ 10,762,100 


11.123.200 


10.534.100 


(189,300) 


228,000 


1.739.500 


1.511.500 


$ 1.550.200 


$ 1.739.500 



STATEMENT OF WORKERS' COMPENSATION 

BOARD FUNDING 

Year Ended December 31, 1992 

Recoverable expenditures 

Reimbursement from Workers' Compensation Board 

Change in receivable from Workers' Compensation Board 

Receivable from Workers' Compensation Board, 
beginning of year 

Receivable from Workers' Compensation Board, 
end of year 

NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1992 

1. General 

The Workers' Compensation Appeals Tribunal ("Tribunal") was created by the Workers' 
Compensation Amendment Act, S.O. 1984, Chapter 58 - Section 32, which came into force on 
October 1, 1985. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, impartial and 
independent manner, appeals by workers and employers of decisions, orders or rulings of the 
Workers' Compensation Board, and any matters or issues expressly conferred upon the Tribunal 
by the Act. 

2. Significant Accounting Policies 

The Tribunal's financial statements are prepared in accordance with generally accepted 
accounting principles except for capital expenditures which are charged to expense in the year of 
acquisition. 

3. Salaries and Wages Recoverable 

Certain employees are on secondment with the Ministry of Community and Social Services of 
the Government of Ontario and their remuneration is recoverable. 

4. Operating Advance from Workers' Compensation Board 

The operating advance is interest-free with no specific term of repayment. 

5. Commitments 

The Tribunal has commitments under an operating lease requiring minimum annual lease 
payments as follows: 

1993 $ 780,960 

1994 780,960 

1995 780,960 

1996 260,320 



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